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THE  PROJECT  OF  A  PERMANENT  COURT 
OF    INTERNATIONAL    JUSTICE    AND 
RESOLUTIONS  OF  THE  ADVISORY  COM- 
MITTEE OF  JURISTS 

Report   and    Commentary 


JAMES  BROWN  SCOTT 


Carnegie  Endowment  for  International  Peace 
division  of  international  law 

PAMPHLET  No.  ;!5 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


Pamphlet  Series  of  the 

Carnegie  Endowment  for  International  Peace 

Division  of  International  Law 

No.  35 


(^ 


f^J^' 


The  Project  of  a  Permanent  Court  of  International 

Justice  and  Resolutions  of  the  Advisory 

Committee  of  Jurists 


REPORT  AND  COMMENTARY 

BV 

JAMES  BROWN  (SCOTT 

Secretary  of  the  Carnegie  Endowment  for  International  Peace 

Technical  Delegate  of  the  United  States  to  the  Second  Hague  Conference,  1907 

Technical  Delegate  of  the  United  States  to  the  Conference  at  Paris,  1919 


The  usual  remedies  between  nations,  war  and  diplomacy,  being  precluded  bj' the  federal  union 
[of  the  United  States],  it  is  necessary  that  a  judicial  remedy  should  supply  their  place.  The 
Supreme  Court  of  the  Federation  dispenses  international  law,  and  is  the  first  great  example 
of  what  is  now  one  of  the  most  prominent  wants  of  civilized  society,  a  real  International  Tri- 
bunal.— John  Stuart  Mill,  Considerations  on  Representati-ue  Gouernment  (1861),  pages  305-6. 


PUBLISHED  BY  THE^DOWMENT 
WASHINGTON 

1920 


^^-4itML;-4jB 


A  3s 


CONTENTS 

Page 
Letter  to  tlie  Board  of  Trustees 1 

J2  Report  on  the  Project  of  a  Permanent  Court  of  International  Justice 
iJ>  AND  Resolutions  of  the  Advisory  Committee  of  Jurists 

^    Introduction    2 

ex: 

^    Formal  opening  of  the  sessions   of  tlie  Advisory   Committee  of  Jurists,   June 

1 6,   1 920    5 

Procedure  of  the  Advisory  Committee 9 

Discussion  and  adoption  of  principle  of  appointing  the  judges  of  the  proposed 
Court  by  concurrent  action  of  the  Council  and  the  Assembly  of  the  League 
of   Nations 12 

Project  for  a  Permanent  Court  of  International  Justice 

Article  I  (Preamble)   49 

Chapter        I. — Organization  of  the  Court  (Articles  2-30) .  50 

Chapter      II. — Jurisdiction  of  the  Court  (Articles  31-80) 92 

Chapter  III.— Procedure   (Articles  37-fi2)  .s  -^5j>^'^  .'• 113 

^      Execution  of  the  judgment  of  the  Court 132 

^'  Resolutions  of  the  Advisor^^  Committee 

o  I. — An  international  conference  in''co'ntinuation  of  the  First  and  Second 

o'.  Hague  Conferences  to  meet  at  stated  intervals  for  the  advancement 

of  international   law    133 

II. — A  High  Court  of  International  Justice  for  the  trial  of  offenses  against 

l^ublic  order  and  the  law  of  nations 139 

III. — The  installation  of  the  Academy  of  International  Law  at  tlie   Hague 

Peace  Palace    1 10 

Closing  session  of  the  Advisory  Committee  of  Jurists,  July  24.  1920 142 

Annex  A. — Project  for  a   Permanent  Court  of   International   Justice    (French 

and  English  texts)    149 

Annex  B. — Resolutions  of  the  Advisory  Committee  (Frencli  and  Englisli  texts)      108 

Annex  C. — Covenant  of  the  League  of  Nations  (Articles  12-17,  and  21) 172 

^  Appendix 

Draft  Convention  for  the  creation  of  a  Court  of  Arbitral  Justice,  adopted  and 
recommended  to  the  Powers  by  the  Second  Hague  Peace  Conference.  Oc- 
tober  18,   1907    \ 177 


388485 


vi  CONTENTS 

Page 
Methods   for  the  constitution  of  a  Permanent  Court  of  International  Justice, 

proposed  to  the  Second  Hague  Peace  Conference,  1907 184 

Methods   of   constituting   a   Permanent   Tribunal   or   a   Court   of   Inte'rnational 
Justice,  contained  in  official  projects  of  various  Governments 

Projects  antedating  the  Peace  Conference  of  Paris 

Convention  of  December  20,  1907,  relating  to  the  creation  of  a  Court  of 

International  Justice  of  Central  America,  Articles  6-8,  and  13 195 

Treaty  between  the   United   States   and  France   for  the  Advancement   of 

General  Peace,  signed  September  15,  1914,  Article  2 190 

A  Swiss  Project  of  a  Federal  Pact  of  tlie  League  of  Nations  and  a  Con- 
stitution of  the  League  of  Nations,  November,  1918-January,  1919, 
Articles    12-16    197 

Recent  Projects,  submitted  to  the  Peace  Conference  at  Paris 

Project  of  the  United  States,  submitted  to  the  Commission  of  the  League 

of  Nations,  Paris  Peace  Conference  of  1919,  extract  from  Article  5.  .    198 

An  extract  relating  to  the  Court  from  the  Draft  Project  for  the  Constitu- 
tion of  a  Society  of  Nations,  presented  to  the  Preliminary  Peace  Con- 
ference at  Paris  by  the  Italian  Government 199 

An  extract  relating  to  the  Court  from  the  Project  for  the  Creation  of  a 
Society  of  Nations,  presented  May  9,  1919,  to  the  President  of  the 
Peace  Conference  at  Paris  by  the  German  Delegation 200 

Annexes  A  and  B  to  the  Note  of  June  23,  1919,  of  the  Austrian  Delegation 

to  the  Peace  Conference  at  Paris,  relative  to  the  Society  of  Nations.  .    201 

Recent  Projects,  not  submitted  to  the  Peace  Conference  at  Paris 

Draft  Convention  for  an  International  Juridical  Organization,  prepared  by 
the  three  committees  appointed  by  the  Governments  of  Denmark, 
Norway  and  Sweden,  respectivelj'^,  February,  1919,  Articles  10-17.  .  .    203 

A  Project  for  a  Court  of  International  Justice,  prepared  by  the    committee 

appointed  by  the   Danish  Government,  August,    1919,  Articles    1-7..    206 

Report  prepared  by  the  Committee  appointed  by  tlie  Norwegian  Govern- 
ment for  investigating  certain  questions  relating  to  the  Society  of 
Nations,  August,  1919,  Articles  1-7 208 

Swedish  Project  for  a  Convention  relating  to  a  Permanent  Court  of  Inter- 
national Justice,  August,  1919,  Articles  1-7 210 

Netherland  Project  relating  to  the  Establishment  of  the  Permanent  Court 
of  International  Justice  provided  for  by  Article  14  of  the  Covenant 
of  the  League  of  Nations,  end  of  1919,  Articles  1-5  and  17 212 

Project  of  the  Hague  Conference  of  February  10-27,  1920,  concerning  the 
establisliment  of  the  Permanent  Court  of  International  Justice  pro- 
vided for  by  Article  14  of  the  Covenant  of  the  League  of  Nations, 
drafted  by  official  representatives  of  Denmark,  Norway,  Holland, 
Sweden  and  Switzerland,  Articles  4-9 215 

Root-Phillimore  Plan  for  organization  and  jurisdiction  of  the  Permanent  Court 

of  International  Justice    218 


CARNEGIE  ENDOWMENT  FOR  INTERNATIONAL  PEACE 
WASHINGTON,   D.  C. 


September  17,  1920. 
To  THL  Board  of  Trustees  of  the 

Carnegie  Endowment  for  International  Peace: 

Gentlemen  : 

On  the  19th  day  of  April,  1917,  the  Board  of  Trustees,  at  its  annual 
meeting,  pledged  the  Endowment  to  take  such  steps  as  lay  in  its  power 
to  aid  in  removing  the  obstacles  still  standing  in  the  way  of  the  estab- 
lishment of  a  truly  Permanent  Court  of  International  Justice.  The 
resolution  in  this  behalf  was  worded  as  follows: 

Resolved,  That  the  Carnegie  Endowment  for  International 
Peace  shall  make  a  special  effort  to  overcome  the  remaining 
obstacles  to  the  establishment  of  an  International  Court  of  Jus- 
tice, and  to  this  end  the  Executive  Committee  is  authorized  and 
directed  to  take  such  action  and  at  such  time  as  it  may  deem 
proper. 

This  resolution  had,  upon  the  motion  of  Mr.  Andrew  J.  Montague, 
already  been  adopted  by  the  Executive  Committee  at  its  meeting  of 
January  4,  1917,  and  referred  to  the  Board  of  Trustees  for  its  approval. 

At  the  annual  meeting  of  the  Board  of  Trustees  on  May  5,  1920, 
Mr.  Elihu  Root,  President  of  the  Endowment  and  Chairman  of  its  Board 
of  Trustees,  stated  that  he  had  accepted  membership  in  an  Advisory 
Committee  of  Jurists  invited  by  the  Council  of  the  League  of  Nations  to 
prepare  a  plan  for  a  Permanent  Court  of  International  Justice.  Mr. 
Root  requested  that  the  undersigned  be  given  a  leave  of  absence  to  ac- 
company him  in  an  advisory  capacity.  This  request  met  with  the 
unanimous  approval  of  the  Trustees.  The  undersigned  therefore  ac- 
companied Mr.  Root,  attended  the  meetings  and,  on  occasion,  partici- 
pated in  its  proceedings. 

In  accordance  with  the  practice  of  the  Endowment,  he  presents  the 
following  report. 

Respectfully  submitted, 

James  Brown  Scott, 
Secretary  and  Director  of  the 
Division  of  International  Law. 


REPORT  ON  THE  PROJECT  OF  A  PERMANENT  COURT  OF  INTER- 
NATIONAL  JUSTICE   AND   RESOLUTIONS   OF   THE 
ADVISORY  COMMITTEE  OF  JURISTS 

Introduction 

The  Treaty  of  Versailles,  signed  June  28,  1919,  whose  ratifications 
were  deposited  at  Paris  on  January  10,  1920,  opens  with  the  Covenant 
of  the  League  of  Nations,  the  Preamble  of  which  reads  as  follows: 

The  High  Contracting  Parties, 

In  order  to  promote  international  cooperation  and  to  achieve  international 
peace  and  security 

by  the  acceptance  of  obligations  not  to  resort  to  war, 

by  the  prescription  of  open,  just  and  honorable   relations   between  nations, 

by  the  firm  establishment  of  the  understandings  of  international  law  as  the 

actual  rule  of  conduct  among  governments,  and 
by  the  maintenance  of  justice  and  a  scrupulous  respect  for  all  treaty  obliga- 
tions in  the  dealings  of  organized  peoples  with  one  another. 
Agree  to  this  Covenant  of  the  League  of  Nations. 

One  way  of  achieving  international  peace  and  security  is  declared 
to  be  "by  the  firm  establishment  of  the  understandings  of  international 
law  as  the  actual  rule  of  conduct  among  governments."  To  ascertain 
the  "understandings  of  international  law"  and  to  make  of  them  "the 
actual  rule  of  conduct  among  governments,"  Article  14  of  the  Covenant 
provides  that  the  Council  of  the  League  of  Nations  shall  "formulate  and 
submit  to  the  members  of  the  League  for  adoption  plans  for  the  es- 
tablishment of  a  Permanent  Court  of  International  Justice."  Ry  the 
same  article  the  court  is  declared  to  "be  competent  to  hear  and  deter- 
mine any  dispute  of  an  international  character  which  the  parties 
thereto  submit  to  it."  In  addition,  the  court  may  also  give  "an  ad- 
visor}' opinion  upon  any  dispute  or  question  referred  to  it  by  the 
Council  or  by  the  Assembly." 

The  court  has  therefore  a  double  purpose  and  a  two-fold  jurisdic- 
tion: it  is  the  judicial  organ  of  the  League  of  Nations  competent  "to 
hear  and  determine  any  dispute  of  an  international  character"  which 
states  may  submit  to  it;  it  is  also  an  adviser  to  the  Council  and  the 
Assembly  in  the  performance  of  their  respective  duties  "upon  any 
dispute  or  question"  which  cither  one  or  the  other  may  refer  to  it. 

To  formulate  ])lans  for  the  cstal^lishment  of  this  Permanent  Court 
of  International  Justice,  the  Council,  on  February  13,  1920,  invited  the 
following  jurists : 


Mr.   Satsuo   Akidzuki,  Former  Ambassador  of  His  Majesty   the 

Emperor  of  Japan. 
Mr.  Rafael  Altamira,  Senator,  Professor  of  the  Faculty  of  Law  of 

the  University  of  Madrid. 
Mr.  Clovis  Bevilaqua,  Professor  of  the  Faculty  of  Law  of  Per- 

nambuco   and  Legal  Adviser   to   the   Ministry  of  Foreign 

Affairs  of  Brazil. 
Baron  Descamps,  Belgian  Minister  of  State. 
Seiior  Luis  Maria  Drago,  Former  Minister  for  Foreign  Affairs  of 

the  Argentine  Republic. 
Professor  Carlo  Fadda,  Professor  of  Law  at  the  University  of 

Naples. 
Mr.  Henri  Fromageot,  Legal  Adviser  to  the  Ministry  of  Foreign 

Affairs  at  Paris. 
Mr.  G.  W.  W.  Gram,  Former  Member  of  the  Supreme  Court  of 

Norway. 
Dr.  B.   C.  J.  Loder,  Member  of  the  Court  of  Cassation  of  the 

Netherlands. 
Lord  Phillimore,  Member  of  the  Privy  Council  of  His  Majesty 

the  King  of  England. 
Mr.  Elihu  Root,  Former  Secretary  of  State  of  the  United  States  of 

America. 
Mr.    Milenko    R.    Vesnitch,  Envoy   Extraordinary'    and    Minister 

Plenipotentiary  of  His  Majesty  the  King  of  the  Serbs,  Croats 

and  Slovenes  in  Paris. 

In  the  letter  of  invitation  it  was  stated  that  "the  duties  which  will 
fall  to  the  court  will  cover  a  wide  sphere,  and  will  be  of  the  very  highest 
importance.  The  Council  in  no  waj^  underrates  the  sacrifice  which  it 
asks  you  to  make  in  devoting  a  period  of  what  will  no  doubt  be  arduous 
labor  to  helping  to  plan  and  create  it;  nor  does  it  fail  to  realize  that 
the  work  it  is  asking  you  to  interrupt  is  itself  of  very  great  importance. 
But  the  court  is  a  most  essential  part  of  the  organization  of  the  League 
of  Nations.  If  it  is  established  on  sound  and  statesmanlike  principles, 
it  can  contribute  perhaps  more  than  any  other  single  institution  to 
maintain  the  peace  of  the  world  and  the  supremacy  of  right  amongst 
the  nations."^ 

Mr.  Akidzuki  declined  appointment  and  was  replaced  by  Mr.  Minc- 
ichiro  Adatci,  Japanese  Minister  to  Belgium.  The  Brazilian  Govern- 
ment was  unable  to  spare  Mr.  Bevilaqua,  who  either  hoped  to  attend 
the  later  sessions  of  the  Committee,  or  wished  a  Brazilian  to  be  on  the 
Committee,  inasmuch  as  he  asked  Mr.  Raoul  Fcrnandes,  Brazilian 
member  of  the  Reparations  Commission  established  under  the  Treaty 


^  League  of  Nations.  Official  Journal,  "Nfarch.  1020.  pp.  .S7-38. 


of  Versailles,  to  represent  him.  Later,  upon  the  request  of  the  Drafting 
Committee,  the  Secretary  General  was  asked  to  have  Mr.  Fernandes, 
whose  services  were  of  marked  value  to  the  Advisory  Committee,  re- 
place Mr.  Bevilaqua.  With  this  request  the  Secretary  General  complied, 
and  Mr.  Fernandes  sat  in  the  Committee  with  the  right  to  vote  from 
July  17th  to  the  end  of  its  sessions.  Dr.  Drago,  who  contrihuted  so 
greatly  to  the  success  of  the  Second  Hague  Peace  Conference  and  who 
sat  as  an  arbitrator,  the  choice  of  Great  Britain  and  the  United  States, 
in  the  North  Atlantic  Fisheries  Cases,  tried  and  decided  at  The  Hague  in 
1910,  was  unable  to  attend  because  of  ill  health.  Professor  Fadda  was 
superseded  by  Arturo  Ricci-Busatti,  Jurisconsult  of  the  Italian  Ministry 
for  Foreign  Affairs  and  Technical  Delegate  to  the  Peace  Conference  at 
Paris.  Mr.  Fromageot  was  detained  in  Paris  on  account  of  official  busi- 
ness. Mr.  Andre  Weiss,  Professor  of  Law  in  the  University  of  Paris, 
and  Jurisconsult  of  the  Ministry  for  Foreign  Affairs,  designated  in  the 
place  of  Mr.  Fromageot,  was  unable  to  attend  and  was  succeeded  at  the 
last  moment  by  Professor  Albert  de  Lapradelle,  Professor  of  Interna- 
tional Law  in  the  University  of  Paris  and  a  Jurisconsult  of  the  Ministry 
for  Foreign  Affairs.  Mr.  Gram  declined  to  serve  on  account  of  ill  health 
and  was  replaced  by  Mr.  Francis  Hagerup,  Envoy  and  Minister  to 
Sweden,  formerly  Prime  Minister  of  Norway.  Mr.  Vesnitch  was,  un- 
fortunately, unable  to  be  present,  inasmuch  as  his  country  had  forced 
the  premiership  upon  him  in  such  terms  and  under  such  conditions 
that  he  could  not  refuse.  His  presence  would  have  meant  much  to  the 
Committee,  as  he  had  been  a  member  of  the  Commission  of  the  League 
of  Nations  appointed  by  the  Paris  Peace  Conference,  in  which  body  he 
advocated  the  establishment  of  a  Permanent  Court  of  International 
Justice  apparently  before  the  other  members  of  the  Commission  had 
seen  or  considered  fhe  necessity  for  such  an  institution. 

The  Committee,  therefore,  when  it  organized  was  thus  composed: 

Mr.  Adatci. 

Mr.  Altamira. 

Mr.  Bevilaqua  (represented  by  Mr.  Fernandes). 

Baron  Descamps. 

Mr.  Hagerup. 

Mr.  de  Lapradelle. 

Dr.  Loder. 

Lord  Phillimorc. 

Mr.  Ricci-Busatti. 

Mr.  Root. 


5 

Formal  Opening  of  the  Sessions  of  the  Advisory  Committee  of  Jurists, 

June  16, 1920  '       ' 

It  was  anticipated  that  the  Committee  should  meet  at  London;  but 
the  Netherland  Government,  mindful  of  the  "undying  memories  which 
cling  around  The  Hague  as  the  cradle  of  the  beneficent  work  which  had 
its  beginning  in  1899,"-  desired  that  the  jurists  called  upon  to  constitute 
a  Permanent  International  Court  of  Justice  should  meet  in  that  historic 
city  to  complete  this  phase  of  the  work  of  the  Second  Peace  Conference. 
Holland,  therefore,  invited  the  Committee  to  sit  at  The  Hague,  and 
placed  at  its  disposal  the  Peace  Palace,  the  gift  of  Andrew  Carnegie, 
the  actual  home  of  the  so-called  Permanent  Court  of  Arbitration  of 
1899.  The  invitation  was  accepted  by  the  members  of  the  Committee, 
and  it  met  in  the  Peace  Palace  at  The  Hague   on  June  16,  1920. 

His  Excellency  Mr.  van  Karnebeek,  Minister  for  Foreign  Affairs  of 
the  Netherlands,  welcomed  the  Committee  on  behalf  of  the  Queen  and 
of  the  Government  in  an  address  which  marshalled  the  past  in  the  inter- 
est of  the  future. 

Thus,  after  a  word  of  greeting,  he  adroitly  invoked  the  memories 
of  the  Hague  Conferences  and  paid  a  tribute  to  their  labors  in  the  field 
of  international  justice: 

The  First  Conference  at  The  Hague,  the  work  of  which  is  often 
underrated,  went  as  far  as  was  practicable  at  the  time  and  created  at  the 
beginning  of  the  present  century,  on  the  proposal  of  the  eminent  British 
delegate.  Lord  Pauncefote  of  Preston,  the  ingenious  machinery  destined 
to  facilitate  and  to  encourage  recourse  to  arbitration  which  was  recog- 
nized by  the  Powers,  at  that  time,  as  the  most  equitable  means  of  ad- 
justing disputes  not  capable  of  solution  by  diplomatic  means.  This 
was  most  ably  explained  by  Baron  Descamps  in  his  report,  more  than 
20  years  ago.  Since  then  there  has  been  a  decided  impetus  to  the 
movement  which  tended  to  (he  introduction  in  international  relations 
of  a  permanent  court,  with  a  purely  judicial  basis,  and  empowered  to 
resolve  by  rules  of  law  disputes  which  might  arise  between  states.  This 
movement,  gaining  new  inspiration  from  a  remarkable  American  initi- 
ative with  which  are  associated  the  well-known  names  of  Messrs.  Elihu 
Root  and  James  Brown  Scott,  whom  we  likewise  have  the  honor  to  see 
amongst  us,  took  form  at  the  Second  Hague  Conference  and  would 
have  ultimately  been  successful  if  it  had  been  possible  to  reach  agree- 
ment on  the  method  of  choosing  judges  and  the  constitution  of  the 
court.     Later  the  fate  met  with  by  the  Prize  Court  proved  too  strong 


2  Circular  note  of  John  Hay,  Secretary  of  State  of  the  United  States,  proposing 
a  Second  Conference  at  The  Hague.  October  21.  1901.  Foreign  Relations  of  the 
United  States  (1904),  pp.  12-13. 


6 

for  the  efforts  made  bj^  certain  Powers  in  1910  to  complete  the  work 
which  the  Conference  of  1907  liad  not  finished.^ 

It  was  appropriate  that  the  Council  of  the  League  of  Nations,  at 
whose  request  the  Advisory  Committee  was  assembled,  should  be  repre- 
sented on  this  occasion.  It  was  personally  appropriate  that  Mr.  Leon 
Bourgeois  should  be  its  representative,  for  the  organization  of  the  states 
of  the  world  into  a  Society  of  Nations,  and  the  settlement  by  peaceable 
methods  of  the  disputes  certain  to  arise  among  the  members,  had  been 
with  him  a  matter  of  faith  for  years.  It  was  especially  appropriate  that 
the  first  delegate  of  France  to  the  First  and  Second  Conferences  of  The 
Hague,  and  in  each  case  the  president  of  the  Commission  for  arbitra- 
tion and  peaceful  settlement  of  disputes,  should  wish  success  to  the 
Committee  whose  members  would  continue  and  complete  in  one  of  its 
phases  the  labors  of  those  two  great  and  memorable  conferences. 

"It  is  fitting,"  he  said,  "that  The  Hague  has  been  designated  for  the 
meetings  of  your  Commission.  The  recollection  of  the  Conferences  of 
1899  and  1907  can  never  pass  from  the  memory  of  those  who  had  the 
honor,  and  there  are  some  of  them  amongst  you,  to  take  part  in  them. 
It  would  be  unjust  to  allow  those  first  steps  in  the  organization  of  jus- 
tice and  peace  to  be  forgotten.  It  is  true  that  the  artisans  of  those  times 
had  not  the  power  and  did  not  even  dream  of  establishing  at  a  single 
blow  and  at  once  the  sovereign  power  of  right.  They  know  that  the 
force  of  special  interests  and  of  passion  remains  and  will  remain  always 
formidable.  It  took  three  centuries  for  Christianity  to  establish  its  em- 
pire in  the  world,  and  no  one  could  have  imagined  that  an  international 
convention,  however  solemn,  could  suffice  to  realize  what  must  be 
nothing  less  than  a  universal  revolution. 

"The  work,  however,  is  far  from  having  been  useless.  Roads  w^ere 
opened.  Methods  were  laid  down.  That  generous  idea  which,  since 
the  time  of  Henry  IV,  thanks  to  the  labors  of  the  philosophers  of  the 
eighteenth  and  nineteenth  centuries,  has  succeeded  in  winning  the  sup- 
port of  all  superior  intelligences,  took  for  the  first  time  at  The  Hague 
a  concrete  form  in  a  series  of  international  acts  which  were  counter- 
signed by  the  representatives  of  forty  nations.* 

After  referring  to  the  terrible  war  and  the  triumph  of  law  and 
justice  through  the  victorious  arms  of  the  Allied  and  Associated  Powders, 
Mr.  Bourgeois  stated  that  the  world  again  was  ready  to  take  up  the 
cause  of  right  and  to  secure  its  permanent  triumph  over  force. 

"Some  points,"  he  said,  "will  appear  to  you  to  be  already  certainly 
obtained. 

^Leajiue  of  Nations,  Official  Journal,  July- August,  1020,  p.  227. 
^  Ibid.,  p.  228. 


"The  Court  of  Justice  must  be  a  true  permanent  court.  It  is  not 
simply  a  question  of  arbitrators  chosen  on  a  particular  occasion,  in  the 
case  of  contlict,  by  the  interested  parties;  it  is  a  small  number  of  judges 
sitting  constantly  and  receiving  a  mandate,  the  duration  of  which  will, 
enable  the  establishment  of  a  real  jurisprudence  on  which  public  law 
may  be  built  U]).  This  permanence  is  a  symbol.  It  will  be  a  judgment 
seat  raised  in  the  midst  of  the  nations,  where  judges  are  always  present, 
to  whom  can  always  be  brought  the  appeal  of  the  weak  and  to  whom 
protests  against  the  violation  of  right  can  be  addressed.  Chosen  not  by 
reason  of  the  state  of  which  they  are  citizens,  but  by  reason  of  their 
personal  authority,  of  their  past  career,  of  the  respect  which  attaches 
to  their  names  known  over  the  w^hole  world,  these  judges  will  represent 
the  truly  international  spirit,  which  is  by  no  means,  as  some  people  pre- 
tend, a  negation  of  the  legitimate  interests  of  each  nation,  but  which  is, 
on  the  contrary,  the  safeguard  of  these  interests,  within  the  \ery  limits 
of  their  legitimacy. 

"This  Permanent  Court  will  not  be,  as  I  have  said,  a  court  of  arbi- 
tration, but  a  court  of  justice.  The  Court  of  Arbitration,  whose  eminent 
services  we  all  remember,  will  certainly  not  cease  to  function  in  all  the 
cases  for  which  it  was  set  up.  But  it  has  a  special  character,  and  its 
range  of  action  is  already  determined.  There  is  between  the  sentence 
in  an  arbitration  and  the  decree  of  a  tribunal  an  essential  difference, 
a  difference  as  profound  as  that  which  exists  between  equity  and  jus- 
tice."= 

Baron  Descamps,  elected  President  of  the  Advisory  Committee  only 
a  few  moments  before  the  opening  session,  thanked  the  Minister  for 
Foreign  Affairs  as  representative  of  the  Dutch  Government  for  the 
hospitable  reception  of  the  Committee,  and  his  old  friend,  Mr.  Bourgeois, 
for  the  cordial  words  which  he  had  addressed  to  its  members. 

In  the  course  of  his  remarks  Baron  Descamps  stated  that  there  had 
been  three  j^eace  conferences;  two  at  The  Hague  and  one  at  Paris.  And 
he  then  proceeded  to  sketch  very  briefly  the  development  of  the  idea  of 
internalionnl  justice,  saying,  and  truly,  that  the  conference  held  at  The 
Hague  in  1899  instituted  for  the  first  time  an  international  court  of  jus- 
tice based  upon  arbitration.  He  admitted  that  in  several  respects  fault 
has  been  found  with  the  work  of  1899,  in  part  well  founded,  and  in  part 
not.  Thus  complaint  was  made  of  the  small  number  of  controversies 
which  had  been  laid  before  the  Court  of  Arbitration.  These  he  estimated 
somewhat  generously  at  about  twenty  in  all,  and  added: 

It  would  appear  somewhat  exacting  to  demand  of  youth  the  ex- 
perience of  ripe  age,  and  it  is  scarcely  just  to  reproach  the  institution 
with  inactivity  when  this  is  in  a  large  measure  due  to  the  lack  of  re- 


League  of  Nations.  Official  Journal,  July-Augiist,   1020,  p.  230. 


8 

sponse  on  the  part  of  governments.  We  must  admit,  however,  that  the 
working  of  this  institution  is,  under  certain  conditions,  not  always  calcu- 
lated to  give  a  real  stimulus  to  the  goodwill  of  the  governments  and  to 
bring  to  maturity  the  fruits  which  might  be  expected  to  result  from  a 
completely  organized  international  justice. 

It  has  been  said  that  this  is  too  costly  an  organ  for  the  multitudi- 
nous inatters  which  are  in  dispute,  and  one  which  lacks  the  guarantees, 
of  a  truly  permanent  and  professional  judicature,  such  as  we  know  to 
be  assured  in  national  jurisdiction,  and  the  great  advantages  of  a  firm, 
continuous  and  progressive  jurisprudence.  There  may  possibly  be  a 
mistaken  idea  underlying  this  desire  to  model  the  organism  of  interna- 
tional jurisdiction  upon  the  prototype  of  national  jurisdiction.  It 
would  be  well  never  to  lose  sight  of  what  jurists  mean,  when,  in  their 
somewhat  crude  but  expressive  language,  they  assert  that  the  "subject- 
matter"  is  not  always  the  same,  as  in  national  communities  the  indi- 
vidual interest  is  subordinated  to  the  sovereign  government,  while  the 
international  community  is  eminently  one  in  which  the  sovereign  states 
enjoy  equal  rights.  Without,  however,  admitting  in  this  case  complete 
assimilation,  it  is  unquestionably  expedient  to  ascertain  in  what  man- 
ner results,  favorable  in  the  national  sense,  can  be  attained  by  means 
which  are  appropriate  to  a  clearly  defmed  national  siluation.'^^ 

The  Advisory  Committee  met  for  the  first  time  in  regular  session 
after  the  formal  opening,  on  the  morning  of  June  17th.  The  President, 
Baron  Descamps,  was  in  the  chair  and  presided  over  the  first,  as  he  did 
over  every  formal  and  informal  session  of  the  Committee.  In  addition, 
the  following  members  were  present: 

Mr.  Adatci. 

Mr.  Altamira. 

Mr.  Bevilaqua   (represented  by  Mr.  Fernandes). 

Mr.  Hagerup. 

Mr.  de  Lapradelle. 

Dr.  Loder. 

Lord  Phillimore. 

Mr.  Ricci-Busatti. 

Mr.  Root. 

To  complete  the  organization  of  the  Committee,  Dr.  Loder,  Justice 
of  the  Supreme  Court  of  Holland,  was  elected  vice  president  at  an  in- 
formal session  held  prior  to  the  o])cning  session,  immediately  after 
Baron  Descamps'  election  as  president;  and  Mr.  de  Lapradelle  was 
elected  rapporteur  on  July  Hth.  The  position  of  reporter  is  unknown  in 
the  English-speaking  world  but  of  the  highest  importance  in  interna- 
tional   conferences,  as  it  is  his  duty  to  explain  and  to  justify  in  his  re- 


League  of  Nations,  Official  Journal,  July-August,  1920,  p.  235. 


9 

port  the  work  ol  the  coiilerence,  and  oi'tcn,  in  accord  with  the  comniil- 
tee  and  subject  to  its  approval,  to  state  the  sense  in  which  the  texts 
voted  are  to  be  understood.  Such  a  report,  therefore,  may  be  of  very 
great  value. 

There  was  also  selected  a  Drafting  Committee,  that  is  to  say,  a 
committee  whose  duty  it  was  to  form  and  shape  the  conclusions  of  the 
larger  body,  giving  to  them  the  order  and  precision  of  a  code.  It  was 
decided  that  this  committee  should  consist  of  the  president,  vice  presi- 
dent and  rapporteur,  and  a  representative  of  the  Anglo-American 
members  to  be  designated  by  Lord  Phillimore  and  Mr.  Root.^ 

Professor  Dionisio  Anzilotti  was  delegated  by  the  Secretary  General 
of  the  League  of  Nations  to  act  as  secretary  of  the  Advisory  Committee, 
with  Mr.  Ake  Hammarskjold  as  chief  assistant.  A  better  choice  could 
not  have  been  made  in  either  case.  Dr.  Anzilotti,  in  addition  to  great 
eminence  in  the  field  of  international  law,  is  deeply  interested  in  inter- 
national organization  and  is  as  helpful  as  he  is  interested.  Mr.  Ham- 
marskjold inherits  a  gi'eat  name,  and  he  seems  destined  to  increase  its 
lustre  if  health  and  years  are  added  to  ability  and  tact,  poise  and  judg- 
ment. 

Procedure  of  the  Advisory  Committee 

International  gatherings,  whether  they  be  official  in  the  sense  that 
they  are  proposed  by  governments  and  composed  of  delegates  appointed 
by  governments,  or  whether  they  be  informal  conferences  such  as  that 
of  the  Advisory  Committee,  have  no  rules  of  procedure  prepared  in 
advance  and  binding  upon  them.  This  is  necessarily  so,  as  each  con- 
ference is  independent  of  and  separate  and  distinct  from  an}'  other  con- 
ference. Each,  therefore,  must  determine  its  procedure  for  itself.  In 
the  present  instance,  a  draft  was  laid  before  the  Committee  at  its  first 
business  session,  on  June  17th.  It  was  discussed,  amended  and  adopted, 
to  be  honored  more  in  the  breach  than  in  the  observance,  to  borrow  a 
phrase  from  the  poet  of  the  English-speaking  peoples. 

The  Rules  of  Procedure  provided  that  the  sessions  of  the  Commit- 
tee were  as  a  rule  not  open  to  the  public;  that  the  deliberations  were 
confidential,  although  in  special  cases  persons  not  members  of  the 
Committee  might,  for  one  reason  or  another,  be  admitted  to  its  meet- 
ings; and  that  statements  of  the  proceedings  might  be  given  to  the  press. 
It  was,  however,  specified  in  this  latter  connection  that  names  should 


^  It  may  be  noted,  for  the  sake  of  completeness,  tliat  the  undersigned  had  the 
honor  to  receive  this  desi2:nation. 


10 

not  be  mentioned,  and  that  all  statements  should  be  passed  upon  by  the 
president  and  the  secretary.  The  members  of  the  Committee  were  alone 
authorized  to  take  part  in  the  discussions,  although  the  secretary  was 
permitted  to  make  explanations  in  case  of  need.  Advisers  and  private 
secretaries  of  members  were  permitted  to  accompany  them,  and  with 
the  consent  of  the  Committee  the  adviser  of  a  member  could  furnish 
explanations  and    othersvise  take  part  in  the  proceedings. 

According  to  the  fourth  article  of  the  rules  as  originally  presented, 
French  and  English  were  to  be  recognized  as  the  official  languages  of 
the  Committee,  but  as  the  result  of  discussion,  the  fourth  article  was 
omitted  entirely,  and  the  question  of  the  official  languages  was  reserved. 
At  a  later  date,  to  be  specific,  on  July  19th,  when  the  Committee  had 
finished  its  labors  and  was  ready  to  report  the  final  text,  the  question 
of  languages  was  again  taken  up  and,  by  unanimous  agreement,  French 
was  chosen  as  the  language  for  both  the  text  of  the  project  and  the 
report. 

The  next  article  of  the  rules  as  finally  adopted  provided  that  the 
minutes  of  the  sessions  should  reproduce  in  summary  form  the  delibera- 
tions and  the  decisions  of  the  Committee  in  extenso,  as  well  as  the 
declarations,  projects  and  amendments  which  each  member  might 
propose.  It  was  also  provided  that  minutes  of  the  previous  session 
should  be  ready  by  the  next  day,  so  that  members  might  make  such 
changes  in  them  as  they  should  consider  desirable  or  necessary  for  the 
perfect  expression  of  their  views.  It  may  be  said  in  passing  that  this 
privilege  was  used  to  such  an  extent  that  in  some  cases  the  revised 
minutes  appear  to  convey  a  different  impression  from  that  to  be  gained 
in  the  session  or  from  a  perusal  of  the  original  minutes.- 

Article  5  reproduced  the  usual  requirement  that  projects  and  amend- 
ments should  as  far  as  possible  be  presented  in  writing  and  that  in  case 
this  had  not  been  done,  their  consideration  might  be  postponed  at  the 
request  of  any  member. 

The  sixth  article  contained  a  perfunctory  provision  that  the  pro- 
gramme of  the  next  day's  proceedings  should  be  submitted  by  the 
president  at  the  end  of  each  session  and  that  when  adopted  it  should 
not  be  modified  without  a  decision  of  the  Committee  to  that  effect. 

Finally,  the  seventh  and  last  article,  in  its  amended  form,  provided 
for  the  adoption  of  decisions  by  a  majority  vote,  that  the  various  texts 


^  The  references  to  and  quotations  from  tlie  minutes  in  this  Report  are  there- 
fore taken  from  the  original  Proces-verhatix.  The  EnscHsh  version  lias  generally 
been  followed,  but  now  and  then  a  change  has  been  made  to  bring  the  English  into 
closer  conformity  with  the  French  text. 


11 

adopted  on  first  reading  were  to  be  submitted  to  a  second  vote,  that 
dissenting  opinions  should  be  entered  in  the  minutes  of  the  session, 
but  that  at  the  request  of  interested  members  mention  thereof  should 
be  made  in  the  final  report  of  the  Committee. 

Omitting  a  preliminary  and  unoliicial  meeting  of  the  members 
present  at  The  Hague  on  the  15th  of  June,  another  informal  meeting  on 
the  afternoon  of  the  KHh  to  choose  a  president  to  preside  at  the  opening 
session,  and  the  formal  opening  on  that  day,  the  Committee  can  be 
said  to  have  begun  its  work  on  the  17th  day  of  June  and  to  have  met 
approximately  three  hours  every  morning  (excluding  Sundays)  with 
two  exceptions.  The  session  for  Monday,  June  28th,  was  omitted  as  the 
French  member  was  obliged  to  be  absent  in  Paris.  The  meeting  on 
Tuesday'  was  held  from  three  o'clock  in  the  afternoon,  in  order  that  he 
might  be  present.  No  meetings  were  held  July  15th-18th,  inclusive,  to 
allow  the  British  member  to  keep  an  engagement  in  England  and  to 
enable  the  Drafting  Committee  to  prepare  a  draft  of  a  project  to  be 
reported  to  the  Advisory  Committee  on  the  19th.  Formal  ineetings  con- 
tinued to  be  held  with  these  exceptions  during  the  morning  hours  from 
the  17th  of  June  to  and  including  the  morning  of  the  24th  of  July.  In 
addition,  the  Committee  met  on  four  afternoons  and  had  one  long  even- 
ing session  on  the  19th  of  July.  The  closing  session  was  held  at  3 
o'clock  on  the  afternoon  of  July  24th. 

Ih  addition  to  the  ofiicial  sessions  of  the  Committee,  there  were 
three  informal  meetings — all  at  the  request  of  Baron  Descamps:  the 
first,  in  order,  if  possible,  to  reach  an  agreement  upon  the  constitution 
of  the  court  through  an  informal  but  nevertheless  authoritative  ex- 
cliange  of  views;  the  second,  to  reach  an  agreement  upon  the  inde- 
pendence of  the  judges  of  the  proposed  court  by  forbidding  them  to 
hold  certain  national  and  international  positions  of  trust  and  dignity; 
the  third,  to  agree,  if  possible,  upon  the  vexed  question  of  the  presence 
of  temporary  judges  to  be  appointed  by  parties  without  permanent 
judges  on  the  bench  to  take  part  in  the  trial  and  decision  of  cases  to 
which  their  countries  are  parties. 

There  were  three  meetings  of  an  informal  character  to  consider 
the  procedure  to  be  followed  by  the  court  in  the  trial  and  decision  of 
cases  upon  which  substantial  agreement  was  reached.  No  minutes 
were  kept  of  these  meetings,  but  their  positive  results  were  silently 
incorporated  in  the  finished  project. 

Finally,  the  drafting  Commiltec  held  four  formal  sessions  in  which 
it  framed  the  first  draft  of  the  project,  and  its  members  met  informally 
from  time  to  time  to  consider  the  drafting  of  new  articles  and  the  re- 
vision of  others. 


12 

Discussion  and  Adoption  of  Principle  of  Appointing  the  Judges  of  the 
Proposed  Court  by  Concurrent  Action  of  the  Council  and  the 
Assembly  of  the  League  of  Nations. 

The  Advisory  Coixiniittee  was  without  instructions  from  the  Coun- 
cil, except  that  it  was  to  draft  a  plan  for  a  Permanent  Court  of  Inter- 
national Justice  under  and  in  conformity  with  the  terms  of  the  Cove- 
nant relating  to  this  institution.  The  nature  of  the  institution  was, 
however,  defined  by  its  name  and,  whatever  method  the  Committee 
might  recommend  for  its  establishment  and  whatever  procedure  it 
should  devise  for  the  settlement  of  disputes  referred  to  it,  the  tribunal 
was  to  be  a  court  of  justice,  not  a  diplomatic  body;  it  was  to  be  perma- 
nent, at  least  in  the  sense  that  its  judges  were  to  be  appointed  and 
known  in  advance,  not  to  be  selected  for  a  particular  dispute  and  to 
go  out  of  being  when  that  should  be  determined. 

The  Conference  of  Paris,  like  the  Hague  Conferences,  sought  to 
provide  methods  of  procedure  to  be  followed  when  diplomacy  had  failed 
to  adjust  a  controversy.  Each  of  these  bodies  took  what  it  believed  to 
be  appropriate  action,  or  such  action  as  could  be  taken  at  the  time  of 
its  meeting  and  under  the  conditions  then  obtaining.  By  the  Pacific 
Settlement  Convention  of  the  First  Hague  Conference,  the  signatory 
Powers  undertook  "to  organize  a  Permanent  Court  of  Arbitration,  ac- 
cessible at  all  times  and  operating,  unless  otherwise  stipulated  by  the 
parties,  in  accordance  with  the  rules  of  procedure  inserted  in  the  pres- 
ent Convention."^  By  this  convention  each  Power  was  to  select  "four 
persons  at  the  most,  of  known  competency  in  questions  of  international 
law,  of  the  highest  moral  reputation,  and  disposed  to  accept  the  duties 
of  arbitrators."^*'  The  term  of  appointment  was  six  years  and  the  names 
of  the  persons  thus  selected  were  to  be  inscribed  "as  members  of  the 
court,"^"  in  a  list  to  be  notified  to  the  signatory  Powers.  From  this  list, 
constituting  the  permanent  panel  of  the  court,  a  temporary  tribunal  was 
to  be  formed  for  the  trial  and  disposition  of  any  case  which  the  con- 
tracting parties  might,  in  their  wisdom,  refer  to  it.  The  idea  therefore 
was  that  of  a  court  of  a  permanent  nature;  but,  in  fact  if  not  in  theory, 
only  the  list  was  permanent,  and  the  court  itself  when  constituted  was 
temporary. 

The  merits  of  the  idea  and  the  defects  of  the  means  were  apparent 
to  the  members  of  the  Second  Peace  Conference,  meeting  at  The  Hague 
in  the  summer  of  1907,  at  which  a  project  was  adopted  "to  constitute, 


^  Article  20. 
^°  Article  23. 


13 

without  altering  the  status  of  the  Permanent  Court  of  Arbitration,  a 
Court  of  Arbitral  Justice,  of  free  and  easy  access,  composed  of  judges 
representing  the  various  juridical  systems  of  the  world,  and  capable  of 
ensuring  continuity  in  arbitral  jurisprudence."^^  The  members  of  that 
conference  were  unable,  in  the  press  of  business  and  the  limited  time 
at  their  disposal,  to  devise  a  method  of  appointing  the  judges  of  this 
truly  permanent  court  of  justice  acceptable  to  all  its  members.  The 
conference,  therefore,  adopted  a  draft  convention  providing  for  the  con- 
stitution of  a  Court  of  Arbitral  Justice,  its  jurisdiction  and  procedure, 
and  recommended  to  the  signatory  Powers  to  put  this  draft  convention 
into  force  as  soon  as  an  agreement  was  reached  through  diplomatic 
channels  upon  the  selection  of  judges  and  the  constitution  of  the  court. '- 
The  representatives  of  the  Powers  at  war  with  Germany  and  its 
Allies,  or  of  those  which  had  broken  off  relations  with  one  or  the  other, 
met  in  conference  at  Paris  in  1919,  and  revived  this  recommendation  by 
incorporating  it  in  the  14th  Article  of  the  Covenant.  The  Council  of 
the  League  of  Nations,  by  appointing  a  Committee  of  Jurists  to  devise 
plans  for  the  establishment  of  a  Permanent  Court  of  International 
Justice,  accepted  the  idea  of  the  First  Hague  Conference,  and  brought 
nearer  to  realization  the  recommendation  of  the  Second  Hague  Con- 
ference that  there  should  be  established  in  the  midst  of  the  independent 
Powers  a  Permanent  Court  of  Justice,  accessible  to  all,  to  extend  the 
empire  of  law  and  to  strengthen  the  appreciation  of  international  jus- 
tice upon  which,  to  quote  instead  of  paraphrasing  the  preamble  to  the 
Pacific  Settlement  Convention  of  each  of  these  Conferences  "are  based 
the  security  of  states  and  the  welfare  of  peoples." 


When  the  Advisory  Committee  of  Jurists  held  their  first  regular 
meeting  on  the  17th  of  June,  it  was  natural  that  Mr.  Root,  who  as  Secre- 
tary of  State  had  instructed  the  American  delegation  to  the  Second 
Hague  Conference  to  propose  an  International  Court  of  Justice,  should 
now  suggest  that  the  Committee  take  up  the  question  w^here  the  Second 
Hague  Conference  had  left  it.    Mr.  Root  therefore  moved: 

That  the  Committee  adopts  as  the  basis  for  consideration  of 
the  subject  referred  to  it  the  Acts  and  Resolutions  of  the  Second 
Peace  Conference  at  The  Hague  in  the  year  1907. 


^^  Draft   Convention   relative   to  tlic   Creation   of  a   Court  of   Arbitral   Justice, 
Article  1. 

^^  Vocu  No.  1  of  the  Final  Act  of  the  Second  Hague  Peace  Conference.  1007. 


14 

That  the  provisions  of  the  several  plans  for  an  International 
Court  of  Justice  already  elaborated  by  representative  jurists  of: 
Sweden,  Norway,  Denmark,  Holland,  Switzerland,  Germany, 
Austria  be  laid  before  the  Committee  and  considered  as  the  sub- 
jects to  which  they  respectively  relate  are  taken  up  for  considera- 
tion. 

It  will  be  observed  that  this  Resolution  consisted  of  two  parts. 
Its  author  stated  its  object  as  regarded  the  first  part  to  be  "to 
give  notice  to  all  the  world  that  this  Committee  will  consider  the  great 
subject  referred  to  it,  not  as  an  opportunity  for  the  expression  merely 
of  our  individual  opinion,  but  under  a  sense  of  duty  to  build  upon  the 
basis  of  the  past  development  of  the  subject  to  which  so  many  mem- 
bers of  the  Committee  have  already  contributed  so  well."  Mi\  Root 
continued  saying  that  he  would  be  glad  to  have  the  world  know  "that 
we  begin  here  again  the  course  of  a  development  of  the  law  of  nations, 
the  principle  of  justice  in  international  affairs."  This  could  not  better 
be  done  than  building  upon  the  broad  and  deep  foundations  laid  by  the 
Hague  Conferences.  "There  is  throughout  the  world  much  respect  and 
reverence  for  the  self-sacrifice  and  devoted  work  done  at  The  Hague 
in  the  Conferences  of  1899  and  1907.  I  think  the  Committee  should 
make  clear  the  relations  which  it  means  to  bear  to  all  that  work  and 
all  that  was  accomplished  then,  and  I  am  sure  that  the  clear  undei*- 
standing  that  the  Committee  is  beginning  its  labors  in  this  spirit  will 
be  very  grateful  to  the  people  of  all  the  civilized  countries  of  the  world. 
I  know  that  it  will  be  so  among  the  people  of  my  own  country."  Mr. 
Root,  however,  recognized  the  fact  that  thirteen  years  had  passed  since 
the  adjournment  of  the  Second  Hague  Conference,  that  since  then  much 
thought  had  been  given  to  the  question  of  an  International  Court  of 
Justice  and  much  progress  made  towards  its  realization. 

The  second  part  of  the  resolution  was  meant  to  supplement  the  first 
in  that  after  taking  The  Hague  as  the  point  of  departure,  the  members 
of  the  Committee  were  to  avail  themselves  of  the  thought  and  progress 
made  subsequent  to  the  adjournment  of  the  Second  Hague  Conference. 

The  Secretariat  of  the  League  of  Nations  had  prepared  a  memoran- 
dum which  analyzed  and  classified  for  the  use  of  the  Committee  the 
various  projects  and  suggestions  for  the  establishment  of  a  Permanent 
Court  of  International  Justice  which  had  been  made  in  the  Second 
Hague  Conference,  in  the  period  following  its  adjournment,  and  which 
seemed  likely  to  be  of  value  to  the  Committee.  To  the  memorandum 
were  appended  copies  of  the  projects,  which,  in  so  far  as  they  concern 


15 

the  appoinlnicnt  of  the  judges  and  the  constitution  of  the  court,  are 
likewise  appended  to  tliis  report.' ■ 

It  will  also  be  observed  that  Mr.  Hoot  had  in  mind  the  project  of 
the  live  Powers,  Sweden,  Norway,  Denmark,  Holland  and  Switzerland, 
whose  representatives  had  met  at  The  Hague  in  the  month  of  Febru- 
ary, 1920,  and  drafted  an  admirable  plan,  based  on  the  labors  of  the 
Hague  Conferences,  which  he  wished  to  have  laid  before  the  Advisor}' 
Connnittee  and  treated  as  if  it  were  a  report  of  a  subcommittee  to  be 
consulted  in  connection  with  each  article  as  it  arose.  In  addition  he 
was  anxious  to  have  the  plans  of  Germany  and  Austria  laid  before  his 
colleagues  which  the  president  of  the  Peace  Conference  of  Paris  had, 
over  his  signature,  assured  those  delegations  would  be  taken  into 
consideration.^^ 

The  Committee,  however,  was  unwilling  to  bind  itself  at  this  stage 
of  the  proceedings  to  take  the  Draft  Convention  of  1907  as  the  basis  of 
its  discussion.  It  w^as  not  averse  to  an  expression  of  appreciation  of 
the  value  of  the  labors  of  the  First  and  Second  Hague  Conferences,  but 
it  wished  to  enlarge  the  scope  of  the  first  part  of  Mr.  Root's  resolution 
so  as  to  include  in  its  appreciation  subsequent  activity.  The  Committee 
therefore  unanimously  adopted  and  made  public  the  following  decla- 
ration : 

The  Committee  begins  its  deliberations  by  rendering  in  first 
instance  homage  to  the  labors  of  the  Peace  Conferences  of  The 
Hague  which  have  already  prepared  with  exceptional  authority 
the  solution  of  the  problem  of  the  organization  of  a  court  of  in- 
ternational justice. 

Ready  to  consider  in  addition  the  projects  emanating  from 
governments,  from  conferences  initiated  by  governments,  of  sci- 


^^  The  Appendix  contains  in  addition:  (1)  Tlie  Draft  Convention  for  the  ])ro- 
posed  Court  of  Arbitral  Justice  of  the  Second  Hague  Conference;  (2)  a  summary 
taken  from  the  memorandum  of  the  Proceedings  of  the  Second  Conference,  relating 
to  the  appointment  of  judges;  (3)  the  text  of  the  American  draft  on  the  appoint- 
ment of  arbitrators,  submitted  to  the  Commission  of  the  I>eague  of  Nations  of  the 
Paris  Peace  Conference  of  1910. 

^*  See  Note  of  May  9,  litlO,  with  accompanying  draft  Covenant  of  the  German 
delegation,  and  Mr.  Clemenceau's  Teply  of  May  22  (Xotes  echanr/ees  entre  le  presi- 
dent de  la  conference  de  la  paix  et  la  delegation  allemande  du  9  mai  ati  38  jiiin 
1919,  issued  by  the  Paris  Peace  Conference  of  lOin,  pp.  4-5,  0-7);  Note  of  June  2.S, 
witli  a])i)endices  containing  suggestions  for  a  covenant,  of  the  Austro-German  dele- 
gation {Xotes  de  la  delegation  de  la  Repuhlique  d'Autriche,  22  mai-0  aoitt,  issued 
by  the  Paris  Peace  Conference  of  1010,  pp.  8f>-05),  and  Mr.  Clemenceau's  reply 
of  July  8,  1010  (Mrs.  C.  A.  Kluyver.  Documents  on  the  League  of  Xations,  pub. 
by  the  International  Intermediary  Institute  of  The  Hague,  1020,  p.  152). 


.     16 

entific  international  associations,  and  of  jurists  of  every  na- 
tionality, whose  labors  have  preceded  its  own,  it  will  take  note 
of  all  sources  of  information  which  are  at  its  disposition  in  order 
to  justify  the  confidence  of  the  Society  of  Nations, 

When  the  Committee  had  agreed  upon  rules  of  procedure  for  the 
conduct  of  business  before  it,  the  question  arose  as  to  whether  its  mem- 
bers should  present  on  the  threshold  projects  or  proposals  for  the  com- 
position of  the  court,  which  had  been  the  obstacle  in  the  way  of  the 
Hague  Peace  Conference  of  1907,  or  whether  there  should  be  a  general 
exchange  of  views.  The  first  would  have  been  the  Anglo-American 
method,  which  prefers  a  concrete  draft.  The  second  is  the  method  of 
international  conferences  which  prefer  a  free  and  unlimited  exchange 
of  views.  The  latter  method  prevailed,  with  the  understanding,  how- 
ever, that  the  members  in  alphabetical  order  should  express  their 
views,  but  that  this  exchange  should  be  limited  to  the  composition  of 
the  court. 

On  the  17th  of  June  Mr.  Adatci,  of  Japan,  first  presented  the  prin- 
ciples which,  in  his  opinion,  should  prevail  in  the  composition  of  the 
proposed  court.  It  is  unfortunate  that  this  address  was  not  taken  down 
in  full  and  that  only  the  briefest  skeleton  exists  in  summary  form,  inas- 
much as  it  stated  in  clear,  precise  and  admirable  terms  the  views  of 
what  might  be  called  the  great  Powers,  and  gave  the  reasons  for  those 
views  without  hesitation  and  without  reserve,  although  they  might  not 
be  palatable  to  the  so-called  small  Powers.  Having  the  courage  of  his 
convictions,  he  presented  a  project  which  secured  to  the  large  Powers 
the  representation  and  influence  in  the  court  which  he,  and  no  doubt 
his  countr^^  thought  that  they  deserved  and  therefore  should  have. 
Mr.  Adatci  frankly  admitted  that  the  principle  of  the  equality  of  states 
prevailed  generally  throughout  the  world  and  that  he  personally  was 
in  favor  of  it;  but  that  as  a  "sociological  jurist,"  who  weighs  facts  as  well 
as  theories  in  the  balance  of  his  judgment,  he  was  only  in  favor  of 
equality  when  it  accorded  with  the  facts  or  when  the  facts  permitted 
it  to  be  applied.  In  other  cases  it  was  a  fiction  that  did  not  correspond 
with  the  realities  of  the  world,  which  must  be  taken  into  account  if  the 
court  to  be  created  was  to  live.  A  large  state,  he  added,  should  have 
a  larger  influence,  because  the  peace  of  the  world  depends  upon 
the  large  states  and  because  the  so-called  great  Powers  in  fact  furnish 
the  different  juridical  systems  which  must  be  represented  in  and  un- 
derstood by  the  court  where  they  will  inevitably  be  the  subject  of  dis- 
cussion. After  a  somewhat  detailed  examination  of  this  phase  of  the 
question,  he  declared  it  to  be  his  opinion    that  not  only  from  the  stand- 


17 

point  of  power  and  intluence,  but  also  from  that  of  wealth  and  of 
civilization,  which  make  up  power  and  influence,  the  large  states  rep- 
resent the  very  elements  which  are  the  basis  of  human  activity. 

Therefore,  he  proposed  that  in  the  composition  of  the  court  the 
Committee  should  frankly  recognize  the  realities  of  life,  that  is  to  say, 
the  existence  of  the  great  Powers,  on  the  one  hand,  and  of  the  small 
Powers,  on  the  other;  that  each  element  as  such  should  be  represented  in 
the  court  and  that  adequate  guarantees  be  given  that  the  large  Powers 
should  not  trample  upon  or  be  unmindful  of  the  rights  of  the  smaller 
states.  He  accordingly  proposed  that  the  court  should  consist  of  thirteen 
judges,  five  of  whom  should  be  appointed  by  the  great  Powers  and  eight 
elected  by  the  small  Powers  according  to  their  pleasure.  In  this  man- 
ner he  contended  the  great  Powders  would  be  permanently  represented 
and  would  have  a  sufficient  guarantee  for  their  interests.  The  small 
Powers  would  always  have  a  majority  and  therefore  the  decision  in 
every  case  would  be  made  by  the  small  Powers,  if  there  were  a  division 
between  the  great  and  small.  The  moral  influence  which  permanent 
representation  would  give  the  great  Powers  would,  he  thought,  be  in 
itself  sufficient  to  secure  the  acceptance  of  their  views  when  their  view^s 
were  just;  the  numerical  preponderance  of  the  small  Powders  would 
prevent  the  triumph  of  the  view^s  of  the  great  Powers  when  they  were 
not  just;  the  small  states  as  such  would,  in  any  event,  always  collabo- 
rate in  the  development  of  international  law  and,  because  of  their  ma- 
jority, be  a  predominant  element  in  its  development.  The  large  Pow- 
ers, he  felt  sure,  would,  because  of  their  permanent  representation,  con- 
sent to  be  judged  by  the  small  Powers,  who  w^ould  ahvays  form  the 
majority  of  the  court. 

Passing  from  the  domain  of  speculation,  Mr.  Adatci  tailed  the  at- 
tention of  his  colleagues  to  the  fact  that,  after  weeks  of  discussion,  the 
Committee  on  Communications  and  Transit,  appointed  by  and  under 
the  League  of  Nations,  had  ultimately  reached  the  conclusion  that  the 
large  Powers  should  be  permanently  represented  in  the  permanent 
committee  to  deal  with  those  subjects,  although  at  first  that  committee 
had  rejected  the  principle  as  contrary  to  the  principle  of  the  equality 
of  nations.  Adverting  to  the  advantage  which  each  great  Power  would 
possess  in  having  a  judge  of  its  nationality  in  the  court  at  the  moment 
of  a  decision  in  which  it  was  interested,  Mr.  Adatci  said  that  he  was  will- 
ing to  accord  the  same  advantage  to  all  states  in  litigation  which  might 
not  have  judges  upon  the  court.  Therefore,  he  proposed  specifically  that 
in  such  an  event  the  litigating  nations  should  each  appoint  ad  hoc  a 
judge,  even  though  this  should  raise  the  number  of  judges  to  fifteen. 


18 

The  Dominions  and  self-governing  colonies  of  Great  Britain  possess, 
as  members  of  tlie  League,  the  same  rights  as  other  members  and 
would  in  Mr.  Adatci's  plan  be  entitled  to  appoint  temporary  judges. 
To  prevent  misunderstanding  on  this  important  point  he  specifically 
mentioned  the  British  Dominions  and  self-governing  colonies  as  so 
entitled. 

Mr.  Altamira  of  Spain  expressed  his  views  as  to  the  composition 
of  the  court  at  the  session  of  June  18th,  saying,  according  to  the  minutes 
of  that  date,  that  the  question  of  the  nomination  of  judges  was  the  most 
important  problem,  "more  particularly  because  it  is  closely  connected 
with  three  other  questions,  that  is  to  say:  (1)  the  criterion  of  eligibility 
for  appointment  as  judge,  (2)  the  determination  of  the  finality  of  the 
court,  (3)  the  question  as  to  whether  submission  to  the  jurisdiction  of 
the  court  shall  be  voluntary  or  compulsory." 

These  three  essential  questions  should  in  his  opinion  be  considered 
and  decided  by  the  Committee.  Doubt  should,  he  said,  be  avoided. 
"It  must  be  recognized,"  to  quote  again  his  views  as  recorded  in  the 
minutes,  "that  no  political  questions  are  outside  the  scope  of  justice; 
all  questions,  whether  political  or  economic,  are  ultimately  questions 
of  justice."  In  the  matter  of  the  appointment  of  judges  he  was  clearly 
of  the  opinion  that  "the  method  of  nomination  of  judges  is  directly 
connected  with  the  principle  of  equality  of  states,"  and  he  referred  in 
this  connection  to  the  method  adopted  by  the  Conference  of  Associa- 
tions for  the  League  of  Nations,  held  at  Brussels,  December  1-3,  1919,  as 
embodying  the  principles  which  should  be  applied  in  the  appointment 
of  judges.     The  method  proposed  by  this  conference  is  thus  stated: 

In  the  organization  of  the  International  Court  of  Justice  it  shall  be  stipulated 
that  the  court  shall  not  include  more  than  one  judge  of  any  one  nationality.  In  the 
election  of  judges  the  principle  of  equality  of  states  shall  be  respected.  The  judges 
shall  be  chosen  from  a  list  of  candidates  proposed  by  the  states.  Each  state 
shall  have  the  riglit  to  propose  a  maximum  number  (to  be  agreed  upon)  of  candi- 
dates of  its  nationality  and,  in  order  to  indicate  clearly  that  the  judge  is  exclusively 
in  the  service  of  justice,  each  state  shall  propose  a  larger  number  of  candidates  of 
other  nationalities.^"^ 

Mr.  Altamira  thus  contented  himself  with  a  declaration  of  prin- 
ciple, without  going  into  detail. 

Mr.  Fernandes  of  Brazil  was  not  present  at  this  session,  and  the 
project  and  memorandum  prepared  and  sent  by  Mr.  Bevilaqua  for  sub- 


^^  Memorandum  sur  les  differente.s  questions  concernant  I' etahlissement  de  la 
Cour  Permanent  de  Justice  Internationale  presents  a  la  Commission  de  juristes 
charge  de  preparer  le  pro  jet  relative  a  V  etahlissement  de  cette  Cour,  p.  41. 


19 

mission  to  the  Coiiiniittee  had  not  arrived.  It  was  presented  on  June 
28lh.  However,  lor  the  sake  of  completeness  it  is  considered  in  this 
connection.  This  project  consisted  of  forty  articles  and  was  supported 
by  an  elaborate  and  interesting  memorandum.  It  provided  for  a  Court 
of  International  Justice  to  be  composed  of  nine  judges  to  be  appointed 
for  life,  to  reside  at  the  seat  of  the  court,  which  was  likewise  to  be  the 
seat  of  the  League  of  Nations.  There  were  to  be  six  supplementary 
or  deputy  judges  to  replace  the  titular  or  regular  judges  in  case  of  ab- 
sence. The  titular  judges  and  the  six  supplementary  judges  were  to  be 
elected  by  the  Assembly  of  the  League  of  Nations  from  international 
jurists  and  persons  holding  high  judicial  ofBce.  These  judges,  both 
titular  and  supplementary,  were  to  be  chosen  without  regard  to  nation- 
ality, and  were  to  be  selected  solely  because  of  their  exceptional  knowl- 
edge and  distinguished  reputations.  However,  none  of  the  five  geograph- 
ical divisions  of  the  world  should  have  more  than  five  titular  judges 
nor  more  than  three  supplementary  judges."  The  states  constituting  the 
court  were  to  prepare  a  list  of  the  names  of  the  supplementary  judges, 
arranged  in  alphabetical  order,  according  to  which  they  should  be  sum- 
inoned  to  replace  the  titular  judges  who  were  unable  to  be  present. 
In  case  of  a  vacancy  in  the  court,  the  court  itself  should  elect  a  sup- 
plementarv"  judge  to  fill  the  vacancy.  In  case  of  vacancies  in  the  offices 
of  supplementary  judges,  the  court  likewise  was  to  select  the  new  sup- 
plementary judges  to  be  chosen,  as  in  the  case  of  the  titular  judges, 
without  respect  to  nationality  and  solely  upon  the  grounds  of  excep- 
tional knowledge  and  distinguished  reputation. 

Although  this  project  was  never  discussed  by  the  Committee  it  was 
read  by  its  members,  and  it  may  be  said  in  passing  that  a  court  so  com- 
posed would  do  justice  to  geographical  divisions  of  the  world,  but  at 
the  expense  of  many  deserving  nations  with  jurists  of  world-wide  repu- 
tation. If  Europe,  for  example,  could  not  have  more  than  five  judges,  it 
is  difficult  to  sec,  according  to  this  plan,  how  the  small  states  of  the  Con- 
tinent could  secure  adequate  representation  in  the  court  except  by  the 
exclusion  of  the  great  Powers. 

Baron  Dcscamps,  the  President  of  the  Commission,  presented  on 
June  21st  an  elaborate  plan  for  the  organization  of  the  court,  indeed 
for  a  series  of  courts,  using  for  this  purpose  the  Permanent  Court  of 
Arbitration  created  bv  the  First  Hague  Conference  of  1899,  in  which 
he  had  been  an  influential  member  and  is  dcscrvedlv  held  in  remem- 


^®  The  French  text  is  as  follows:  "aucnne  dc  cinq  parties  du  monde  n'aiira  plus 
de  cinq  juges  titulaires  ni  plus  de  trois  suppleants." 


20 

brance  for  the  creation  of  the  Court  of  Arbitration  to  which  he  contrib- 
uted so  effectively.  Leaving  aside  for  tlie  moment  his  proposal  of  a 
High  Court  of  International  Justice,  composed  of  one  member  for  each 
state  elected  by  the  members  of  that  state  from  its  members  on  the 
Permanent  Court  of  Arbitration  with  jurisdiction  in  matters  which 
affect  international  public  order,  such  as  crimes  against  the  universal 
law  of  nations,  the  Permanent  Tribunal  of  International  Justice  pro- 
posed by  Baron  Descamps  was  to  consist  of  nine  titular  judges  and  six 
supplementary  judges,  to  be  "elected  by  the  members  of  the  High  Court 
of  International  Justice,  so  as  to  constitute,  in  accordance  with  the  first 
article  of  the  Draft  Convention  of  1907,  a  jurisdiction  freely  and  easily 
accessible  and  based  on  the  principle  of  juridical  equality  of  states. 
The  tribunal  shall  include  judges  representing  the  principal  juridical 
systems  of  the  world  and  capable  of  securing  the  continuity  of  inter- 
national jurisprudence."  With  the  exception  of  the  phrase  relating 
to  the  juridical  equality  of  states,  which  is  an  "intruder,"  the  last  sen- 
tence of  the  quotation  is  taken  from  the  text  of  Article  1  of  the  Draft 
Convention  for  the  Court  of  Arbitral  Justice. 

Baron  Descamps'  project  betrayed  the  skill  of  a  tried  and  steady 
hand.  His  purpose*  was  to  preserve  intact  the  Permanent  Court  of 
Arbitration  created  by  the  First  Hague  Conference,  as  without  the  co- 
operation of  the  members  of  this  court  the  proposed  Permanent  Court 
of  International  Justice  could  not  come  into  being,  since  they  were  to 
elect  its  judges.  In  the  next  place  he  skilfully  availed  himself  of  the 
first  article  of  the  Draft  Convention  for  the  Court  of  Arbitral  Justice 
adopted  by  the  Second  Hague  Conference  of  1907.  The  project  was 
exceedingly  adroit,  as  Baron  Descamps  sought  to  eliminate  the  ques- 
tion of  the  equality  or  inequality  of  nations  by  having  the  judges  ap- 
pointed to  represent  the  various  juridical  systems  of  the  world  which, 
in  the  Baron's  view,  the  so-called  great  Powers  happened  to  possess. 
Perhaps  he  somewhat  weakened  his  case  by  openly  avowing  in  his  re- 
marks justifying  his  project,  that  the  purpose  for  which  the  principal 
juridical  systems  of  the  world  were  invoked  was  to  secure  to  the  great 
Powers  permanent  representation.  Doubtless  these  Powders,  desiring 
to  secure  what  the  Baron  was  willing  to  accord,  would  have  accepted 
his  theory  without  questioning  its  validity;  but  the  small  states,  while 
willing  to  allow,  as  the  event  proved,  judges  to  be  chosen  wdth  respect 
not  merely  to  the  principal  juridical  systems,  but  also  to  the  great  forms 
of  civilization,  were  nevertheless  unwilling  to  have  either  or  both  of 
these  elements  used  to  attribute  to  the  great  Powders  permanent  repre- 
sentation in  derogation  of  the  principle  of  juridical  equality. 


21 

Baron  Dcscanips'  project  would  have  required  the  presence  at  The 
Hague  of  one  member  from  each  of  the  countries  parties  to  the  Perma- 
nent Court  of  Arbitration,  as  the  election  of  judges  was  to  take  place 
in  that  city,  a  feature  almost  as  objectionable  to  the  Committee  as  the 
election  of  the  judges  by  an  assembly  composed  of  one  member  of  each 
state  represented  in  the  Permanent  Court  of  Arbitration.  Neverthe- 
less the  Permanent  Court  of  Arbitration  w&s  not  overlooked  or  its 
cooperation  rejected  in  the  selection  of  judges,  for  to  it,  as  will  pres- 
ently be  seen,  is  entrusted  the  preparation  of  the  lists  of  persons  from 
whom  the  judges  of  the  Court  of  Justice  are  to  be  chosen  by  the  con- 
current and  independent  action  of  the  Assembly  and  Council  of  the 
League.  In  this  way  and  to  this  extent  the  Baron  accomplished  the 
purpose  which  he  had  in  mind,  of  preserving  intact  the  Court  of  Arbi- 
tration of  1899  and  of  maintaining  the  relation  of  parent  and  child 
between  the  Court  of  Arbitral  Justice  of  1907  and  the  tribunal  to  be 
created  in  1920. 

Mr.  Hagcrup  did  not  present  a  definite  plan,  but  stated  the  prin- 
ciples which  he  thought  should  prevail  in  the  selection  of  judges.  By 
way  of  introduction,  he  premised  that  his  starting  point  was  that 
of  Mr.  Altamira,  that  every  question  submitted  to  a  court  can  be  re- 
duced to  a  legal  question.  Tlierefore,  methods  of  forming  adminis- 
trative committees  dealing  with  other  than  legal  questions  should  not 
necessarily  be  followed  in  the  creation  of  a  court  of  justice,  for  he  was 
aware  from  practical  experience  that  international  disputes  might  pre- 
sent themselves  in  such  a  form  and  guise  as  to  make  it  necessary  to 
consider  them  from  other  than  legal  points  of  view,  thus  making  it  de- 
sirable to  maintain  the  Permanent  Court  of  Arbitration  alongside  of 
the  proposed  Permanent  Court  of  International  Justice.  Without  stop- 
ping to  consider  tlie  relation  between  these  two  institutions,  he  was  of 
the  opinion  that  the  new  court  should  be  a  juridical  organization,  and 
that  in  the  domain  of  law,  as  distinct  from  that  of  administration,  there 
was  and  is  one  indispensable  principle,  the  equality  of  sovereign  states, 
which  should  be  api)lied  in  creating  such  an  institution. 

Recalling  a  phrase  of  Lord  Phillimore,  'in  the  eyes  of  law  all 
states  are  equal,"  Mr.  Hagerup  added  that  this  phrase  is  "the  Magna 
Charta*  of  the  smaller  states.  .  .  .  Political  considerations  should 
not  l)e  taken  into  account  for  the  settlement  of  juridical  problems." 
And  he  was  convinced,  he  said,  that  if  the  element  of  inequality  was 
introduced  into  the  plan  for  a  proposed  Court  of  Justice,  the  plan  would 
fail  as  did  the  plan  of  1907.  But,  although  he  wished  legal  questions  to 
be  solved  by  legal  process  without  injecting  political  considerations, 


22 

nevertheless,  the  political  phase  of  the  question  was  not  lost  upon  him, 
as  he  said  in  this  very  connection  that  "the  Scandinavian  countries  and 
Switzerland  would  oppose  its  adoption,"  and  that  it  would  be  impos- 
sible to  accept  Mr.  Adatci's  proposed  compromise. 

Coming  to  the  immediate  problem  before  the  Committee,  Mr. 
Hagerup  was  prepared  to  accept  any  method  of  nominating  the  judges 
for  the  proposed  court  which  was  not  inconsistent  with  the  principle 
of  the  equality  of  states.  The  method  which  he  would  prefer  was  that 
contained  in  the  joint  project  of  the  Scandinavian  countries,  in  whose 
preparation  he  had  taken  part.  But,  without  insisting  upon  this  draft, 
he  stated  that  the  project  of  the  neutral  Powers  of  February,  1920, 
commonly  called  the  Five  Power  Plan,  and  also  the  project  of  the 
Union  Jnridiqne  Internationale  of  June  5-12,  1920,  seemed  to  be  en- 
tirelj'  acceptalDle.  The  really  important  thing,  he  concluded,  "is  to  find, 
without  taking  into  account  the  political  considerations,  independent 
judges  in  possession  of  the  highest  competency,  the  largest  experience, 
and  the  highest  moral  character." 

The  Scandinavian  project  to  which  Mr.  Hagerup  referred  is  the 
draft  convention  prepared  in  the  course  of  1918  by  official  representa- 
tives of  the  Governments  of  Sweden,  Norway  and  Denmark.  It  is  to 
be  observ^ed  that  it  antedated  the  formation  of  the  League  of  Nations, 
as  its  work  was  concluded  before  the  Conference  of  Paris  of  1919  be- 
gan its  arduous  labors.  There  is,  therefore,  no  reference  to  the  League 
of  Nations,  as  in  the  case  of  the  Five  Power  Plan  and  the  project  of 
the  Union  Jnridiqne  Internationale  which  Mr.  Hagerup  found  accept- 
al)]o.  The  Scandinavian  draft,  however,  took  into  account  the  agen- 
cies created  by  the  Hague  Conferences  and  used  them  for  the  creation 
of  the  new  court.  In  this  respect,  and  in  detail,  there  was  a  marked 
similarity  between  the  project  presented  by  Baron  Descamps  and  that 
devised  by  the  Scandinavian  Powers,  to  which  fact  Mr.  Hagerup  ad- 
verted in  the  course  of  the  sessions. 

Briefly  stated,  the  court  was  to  be  organized,  according  to  the  Scandi- 
navian plan,  as  far  as  possible  upon  the  principle  of  tlic  juridical  equal- 
ity of  states.  It  was  to  be  composed  of  fifteen  members,  chosen  without 
respect  to  their  nationality,  in  which  no  one  state  could  have  more  than 
two  members,  or  in  the  alternative  more  than  one. 

Coming  now  to  the  question  of  election,  which  Mr.  Hagerup  called 
the  crux  of  the  question : 

The  members  of  the  Court  of  Justice  arc  elected  by  an  Elec- 
toral Assembly  in  which  each  state  is  represented  by  the  first  in 
numerical  order  of  its  judges  in  the  Permanent  Court  of  Arbi- 


23 

tralion  at  The  Hague,  or  if  this  member  is  prevented,  by  the 
next  mcnil)er  who  is  not  prevented.^' 

So  much  for  the  principle:  next  as  to  the  application  of  the  prin- 
ciple. 

The  election  is  based  upon  a  list  comprising  all  the  candi- 
dates proposed  by  the  governments.  Each  government  presents 
at  most  as  many  candidates  as  there  are  places  to  be  filled  in 
each  particular  case,  and  at  least  one-half  of  this  number.  No 
independent  proposal  may  be  formulated  within  the  Electoral  As- 
sembly.^- 

It  will  be  observed  that  the  clear  and  fundamental  distinction  is 
drawn  between  the  privilege  of  proposing  and  the  duty  of  electing. 
The  governments  propose  and  the  Assembly,  composed  of  one  from 
each  national  group  of  the  Court  of  Arbitration,  elects.  How  does  the 
election  take  place?  "The  Electoral  Assembly  meets  at  The  Hague  for 
the  first  time  on  June  1,  .  .  .,  or  upon  the  next  week  day  and  there- 
after at  the  same  time  every  six  years,"  or  in  the  alternative  "every  three 
years."'"  Tlie  designated  member  of  each  national  group  was  to  I)e 
notified  and  to  be  invited  to  The  Hague  by  the  International  Bureau 
of  the  Administrative  Council  of  the  Court  of  Arbitration.  The  members 
were  to  choose  their  president,  but  before  proceeding  to  the  election 
of  the  judges  of  the  court  the}'  were  to  be  required  to  exchange  views 
and  to  discuss  the  qualifications  of  the  persons  proposed  for  election 
as  judges.  Only  the  electors  were  to  be  entitled  to  vote.  Each  judge 
was  to  be  elected  by  a  separate  ballot  and  a  majoritj'  of  votes  cast  was 
required  for  election.  If,  however,  after  the  second  ballot,  no  candidate 
had  received  the  absolute  majority,  a  third  ballot  required  only  a 
simple  majority.  In  this  plan  the  titular  judges,  fifteen  in  number, 
were  to  be  elected  for  life,  or,  in  the  alternative,  for  nine  years;  the 
supplementar}-^  judges,  likewise  fifteen  in  number,  for  six  years,  or, 
in  the  alternative,  until  the  next  meeting  of  the  Electoral  Assembly. 
The  rank  or  precedence  of  the  supplementary  judges  was  to  be  fixed 
by  the  Electoral  Assembly  at  the  time  of  their  election,  and.  in  case  of 
a  vacancy  among  the  titular  judges  of  the  court  the  first  supplemcntars- 
judge,  in  the  order  of  rank,  was  to  fill  the  vacancy  and  to  hold  during 
life,  or,  in  the  alternative,  during  the  balance  of  the  term  of  the  judge 
whom  he  succeeded.     A  titular  judge  temporarily  absent  was   to  be 


"Article  12,  Appendix,  p.  204. 
"Article  13,  Appendix,  p.  205. 
^"Article   14,  ibid. 


24 

replaced  by  a  supplementary  judge  in  the  order  of  rank,  to  hold  office 
as  long  as  it  should  be  necessary. 

Finally,  in  so  far  as  the  present  matter  is  concerned,  a  titular  judge 
having  reached  the  age  of  sixty-five  and  having  served  ten  years  could 
retire  with  the  right  to  salary  during  the  remainder  of  his  life,  and,  in 
any  event,  a  titular  judge  seventy  years  of  age  was  to  be  retired  with 
the  continuation  of  salaiT  during  life. 

It  is  to  be  observed  in  this  connection,  that  in  the  Scandinavian 
plan,  as  in  that  of  Baron  Descamps,  the  designated  member  of  the  na- 
tional group  was  to  proceed  to  The  Hague  to  make  the  election.  It 
will  be  later  noted  that  in  the  scheme  of  appointing  the  judges  actually 
adopted  by  the  Advisory  Committee  for  the  Permanent  Court  of  Inter- 
national Justice,  the  order  is  reversed.  The  national  groups  of  the  Per- 
manent Court  of  Arbitration  propose  the  list  of  candidates  for  election, 
but  the  governments  themselves  elect  the  judges. 

After  Mr.  Hagerup  had  expressed  his  views,  Mr.  de  Lapradelle 
proceeded  to  state  the  principle  which  should  prevail  in  the  appoint- 
ment of  judges.  Like  Mr.  Hagerup,  he  did  not  present  a  plan  in  his 
own  name,  but  he  laid  before  the  Committee  the  project  of  the  Union 
Jiiridique  Internationale,  of  which  organization  he  is  the  untiring  Sec- 
retary General,  which,  it  is  believed,  expressed  his  views,  inasmuch  as 
he  had  taken  a  leading  part  in  framing  it,  just  as  Mr.  Hagerup  had 
shared  in  the  preparation  of  the  Scandinavian  plan. 

The  project  for  the  general  organization  of  a  Permanent  Court  of 
International  Justice  drafted  by  the  Union  Juridiqne  contemplated  a 
court  of  fifteen  titular  judges  and  six  supplementary  judges.  Eight 
titular  and  three  supplementary  judges  w^ere  to  be  of  European  na- 
tionality; five  titular  and  two  supplementary  judges  of  American  na- 
tionality; two  titular  and  one  supplementary  judge  of  Asiatic  national- 
ity. All  judges,  titular  as  well  as  supplementary,  were  to  be  elected 
for  a  period  of  nine  years  by  secret  ballot  of  the  Assembly  of  the 
League  of  Nations.  A  list  of  persons  eligible  for  election  was  to  be 
prepared  by  the  Secretary  General  of  the  League  of  Nations.  This  was 
to  include'  not  more  than  three  names  to  be  proposed  by  the  govern- 
ment of  each  of  the  states  members  of  the  League  of  Nations,  and  ap- 
parently an  unlimited  number  of  names  proposed  by  international 
scientific  institutions,  to  be  designated  by  the  League  of  Nations,  ex- 
clusively devoted  to  the  study  of  international  law.  However,  the  list 
thus  prepared  w^ts  for  the  guidance  of  the  Assembly;  .it  was  not  to 
bind  the  Assembly,  inasmuch  as  the  Assembly  was  free  to  elect  others 
than  those  included  in  the  list. 


25 

The  titular  judges  were  first  to  be  elected,  tlien  tlie  supplementary 
judges,  in  the  lirst  instance  by  absolute  majority.  Failing  this  on  first 
ballot,  simple  majority  was  sufficient.  It  was  further  provided,  in  so 
far  as  the  method  of  composing  tlie  court  was  concerned,  that  not  more 
than  one  titular  or  one  supplementary  judge  should  be  chosen  from  any 
one  nation,  and  that  if  two  members  of  one  and  the  same  nationality 
should  receive  the  requisite  number  of  votes  for  election,  the  one  hav- 
ing the  larger  vote  should  be  decla^-ed  elected,  the  older  in  case  of  tie. 

Without  adding  the  arguments  which  militated  in  favor  of  his 
opinion,  Mr.  de  Lapradelle  declared  at  the  session  of  June  18th  that,  in 
his  conception,  the  distinction  between  the  political  and  the  juridical 
points  of  view  was  fundamental;  that  in  the  domain  of  law  states  are 
equal  and  that  the  equality  of  states  in  respect  to  the  nomination  of 
judges  is  the  necessarj^  consequence  of  this  principle. 

Mr.  Justice  Loder,  of  the  Supreme  Court  of  Holland,  who  followed 
Mr.  de  Lapradelle,  began  by  expressing  pleasure  that  most  of  the  mem- 
bers had  spoken  in  favor  of  the  principle  of  equalit}^  of  states,  "the 
principle,"  he  said,  "which  has  inspired,  among  others,  tlie  Hague 
scheme  of  February  last" — the  project  of  the  neutral  states,  more  com- 
monly called  the  Five  Power  Plan — upon  which  Mr.  Hagerup  had  just 
put  the  seal  of  his  approbation.  "It  is  necessary,"  Mr.  Justice  Loder 
continued,  "to  realize  first  of  all  that  the  question  to  be  solved  is  a 
juridical  question,  and  that  the  most  efficacious  means  must  be  found 
for  the  protection  of  the  juridical  character  of  the  new  organization." 
Therefore,  he  expressed  himself  as  in  thorough  accord  with  tlie  views 
expressed  by  Mr.  Altamira,  Mr.  Hagerup  and  Mr.  de  Lapradelle.  Mr. 
Justice  Loder  apparently  hesitated  to  lay  before  the  Committee  the  text 
of  the  Five  Power  Plan,  in  the  formation  of  which  he  had  taken  the 
leading  part,  having  presided  over  the  conference  which  drafted  it.  It 
was  perhaps  unnecessary  that  he  should  do  so,  as  a  copy  of  the  plan 
had  been  sent  by  the  Secretariat  to  each  of  the  members  of  the  Advisory 
Committee  before  their  meeting  at  The  Hague.  They  were  therefore 
familiar  with  its  provisions.  Mr.  Justice  Loder,  however,  presented  to 
the  Commiltee  a  copy  of  his  address  on  a  Permanent  Court  of  Inter- 
national Justice,  which  he  had  delivered  before  the  International  Law 
Association  at  Portsmouth  on  May  28th,  1920,  and  which  can  therefore 
be  taken  as  the  most  recent  expression  of  his  views.  It  is  regarded  by 
himself  as  authoritative. 

In  the  course  of  this  address,  after  referring  to  the  great  and  legal 
principle  of  the  equality  of  states,  which  should  be  the  cornerstone  of 
the  court,  and  after  stating  that  the  judges  should  be  independent,  be- 


26 

longing  to  no  country,  representing  no  nation,  against  whom  outside 
influence  should  be  powerless  to  prevail,  he  maintained  that  "tlie 
only  diificulty  is  to  find  a  system  which  assures  the  election  of  fit  men." 
And,  with  the  honesty  characteristic  of  his  country,  he  added,  "I  be- 
lieve that  the  Hague  plan  furnishes  these  guarantees,"  What  is  this 
plan,  according  to  Mr.  Justice  Loder?    "It  comes  to  this,"  he  says: 

The  choice  of  judges  is  made  by  the  Assembly  in  which  each  state 
has  one  vote.  An  absolute  majority  of  votes  is  necessary  to  make  the 
appointment  valid.  But  two  things  precede  the  election.  First,  the 
drawing  up  of  a  list  of  candidates  from  which  alone  an  appointment 
can  be  made,  and  secondly,  a  debate  on  these  candidates  in  a  meeting 
of  the  Assembly.  Each  state  submits  its  list.  Before  doing  so,  it  is 
obliged  to  ask  the  advice  of  its  highest  judicial  and  administrative 
functionaries.  And  not  more  than  one-third  of  the  names  submitted 
by  each  state  should  be  those  of  nationals.  Two- thirds  of  the  names 
would  therefore  be  those  of  non-nationals. 

The  immediate  result  will  be  that  the  names  of  the  foreigners  on 
each  list  will  necessarily  be  those  of  famous  men,  and  that  those  who 
ought  to  be  considered  the  most  serious  candidates  will  necessarily 
occur  on  a  number  of  lists. 

The  consequence  will  be  a  perfectly  legitimate  preponderance  of 
the  great  Powers.  There  are  many  more  French,  English,  American, 
Italians,  and  Japanese,  than  Dutch,  Swiss,  Danes  or  Norwegians.  And 
it  is  therefore  probable  that  a  larger  number  of  persons  belonging  to 
these  nations  will  be  prominent  enough  to  be  considered  as  serious 
candidates.  Naturally  their  nanies  will  figure  on  several  lists.  The 
Secretariat  of  the  League  now  composes  one  list  from  all  those  sent  in, 
stating  behind  each  name,  if  submitted  more  than  once,  how  often  it 
occurs,  without  mentioning  the  names  of  the  states  who  presented 
them. 

The  list  thus  shows  automatically  the  names  of  the  most  prominent 
candidates. 

Next  follows  the  debate  on  these  persons. 

And  the  voting  takes  place  after  the  debate. 

Lord  Phillimore,  who,  after  a  distinguished  career  at  the  English 
bar,  had  had  the  great  advantage  of  nineteen  years'  experience  upon 
the  l)ench  and  was  at  that  moment  a  member  of  the  Privy  Council 
taking  part  in  the  decision  of  most  important  cases,  brought  to  the 
Committee  the  wisdom  born  of  experience.  The  court,  to  meet  with 
his  'ipproval,  would  naturally  be  one  composed  of  judges,  that  is  to 
saj%  of  persons  who  had  had  actual  experience  in  the  trial  and  the  de- 
cision of  cases,  not  jurisconsults  or  men  of  theory.  In  such  a  court 
the  great  Powers — using  the  word  "great"  in  the  usual  sense  of  large 
and  populous — would  have  confidence  because  decisions  would  be  ren- 


27 

dered  by  persons  trained  in  the  practice  and  administration  of  law. 
But  in  order  that  the  great  Powers  should  have  such  confidence  in  the 
decisions  of  the  court,  as  to  secure  their  execution  by  physical  force  if 
need  be,  it  was  necessary  that  the  great  Powers  should  be  represented 
pprnianently  in  the  court.  Otherwise,  the  inhabitants  of  the  various 
great  Powers  would  not  be  satisfied  to  submit  to,  or  to  enforce  judg- 
ments given  by  a  court  in  which  their  respective  countries  were  not 
represented.  For  these  reasons,  Lord  Phillimore  expressed  himself  in 
favor  of  Mr.  Adatci's  proposal,  which  secured  permanent  representa- 
tion to  the  great  Powers  and  assured  to  the  small  Powers  a  constant 
majority.  The  interests  of  the  large  and  the  rights  of  the  small  Pow- 
ers would  be  recognized  and  safeguarded. 

Mr.  Ricci-Busatti  began  his  remarks  by  stating  that  his  point  of 
departure  was  different  from  that  of  his  colleagues,  but  that  his  con- 
clusions were  much  the  same.  The  difference  between  law  and  poli- 
tics had  been  pointed  out,  and  j^et  he  felt  that  it  was  impossible  exactly 
to  define  this  difference.  In  the  same  way  he  felt  it  impossible  to  draw 
the  line  between  arbitration  and  justice.  For  these  reasons  it  seemed 
to  him  impossible  to  base  the  new  court  on  a  distinction  between  law 
and  politics  or  between  equity  and  justice,  apparently  meaning  that 
the  new  organization  should  be  able  to  assume  jurisdiction  and  to 
decide  any  dispute  submitted  to  it,  whether  it  were  legal,  equitable  or 
political.  The  purpose  of  the  court  to  be  created  was  to  settle  disputes 
between  states  by  authority  other  than  that  of  the  states  themselves. 
Such  a  court,  in  his  opinion,  would  be  the  result  of  a  gradual  develop- 
ment, and  a  court  of  justice  would  gradually  emerge  from  a  court  of 
arbitiation.  To  perform  its  functions  it  should  have  independent  life, 
aj^d  yet  at  the  same  time  it  would  ultimately  depend  upon  the  co- 
operation of  states.  It  was,  however,  necessary  to  attempt  to  draw 
the  line  between  the  judicial  and  the  political  functions  of  the  state, 
and  if  Ibis  could  be  successfully  accomplished  and  these  two  functions 
separated,  it  would  greatly  aid  the  development  of  international  law 
and  advance  the  cause  of  international  justice.  The  court  contem- 
plated by  Mr.  Ricci-Busatti  was  one  which,  while  being  separate  and 
distinct,  was  nevertheless  to  be  developed  from  the  Court  of  Arbitra- 
tion, and  in  this  couj-t  some  means  was  to  be  found  to  secure  to  the 
great  Powers  permanent  representation;  or,  to  quote  his  exact  lan- 
guajK^  on  another  occasion,  giving  fuller  expression  to  his  views: 

1.  It  is  expedient  that  the  Court  of  Justice  be  as  intimately  con- 
nected as  possible  with  the  Court  of  Arbitration,  the  functions  of  which 
it  is  to  develop. 


28 

2.  It  would  seem  necessary  for  the  fundamental  principle  of  the 
legal  equality  of  states  to  be  admitted  with  due  regard  to  the  Powers 
who  enjo}'^  a  preponderating  influence  in  the  League. 

3.  It  would  seem  useful  for  the  Assembly  of  the  League  to  partici- 
pate in  some  way  in  the  constitution  of  the  Court. 

4.  From  a  practical  point  of  view,  it  seems,  in  my  opinion,  neces- 
sary that  the  constitution  of  the  tribunal  in  each  special  case  should  be 
provided  for  by  special  provisions;  the  wishes  of  the  parties  should  in 
this  respect  be  taken  into  consideration. -° 

It  iijjpeared  to  the  members  of  the  Committee  that  Mr.  Ricci-Busatti 
was  more  in  favor  of  arbitration  than  judicial  decision,  and  that  the 
court  of  his  preference  was  one  permanent  in  form  and  temporary  in 
its  constitution,  leaving  to  the  parties  in  dispute  the  right  and  power  to 
modify  its  membership  in  accordance  with  the  supposed  requirements 
of  the  case  to  be  submitted.  His  remarks  were  of  a  general  nature,  by 
waj'  of  introduction  to  a  plan  which  he  reserved  the  right  to  present 
at  a  later  date.  On  the  23rd  of  June  he  presented  this  plan.  On  the 
30tli  of  June  he  added  to  it,  and  on  July  7th  he  laid  before  the  Com- 
mittee a  substitute  for  the  articles  of  his  previous  projects  dealing  with 
the  appointment  of  judges.  All  these  plans,  however,  were  in  accord- 
ance with,  and  indeed  were  the  natural  consequences  of  the  views 
which  he  had  expressed  in  his  opening  remarks  and  they  were  so  un- 
derstood ])y  his  colleagues.  Each  project  was  considered  as  contrary 
to  the  fundamental  purpose  for  which  the  Advisor}^  Committee  was 
assembled,  which  was,  in  the  opinion  of  its  other  members,  to  form  a 
permanent  court,  not  to  devise  a  method  for  the  creation  of  a  series  of 
temporary  tribunals.  For  this  reason  his  views,  which  w^ere  listened 
to  with  respect,  did  not  have  the  influence  in  a  Committee  called  to 
create  a  Permanent  Court  of  International  Justice  which  they  would 
have  had  if  the  business  of  the  Committee  had  been  to  revise  the  Per- 
manent Court  of  Arbitration  of  1899. 

It  is  natural  that  Mr.  Ricci-Busatti  should  have  formed  a  prejudice 
for  a  temporary  as  distinct  from  a  permanent  tribunal,  inasmuch  as  the 
Italian  project  for  the  constitution  of  an  International  Court  of  Justice 
presented  to  the  Conference  in  Paris,  or  rather  to  its  Commission  for 
th(>  League  of  Nations,  advocated  this  method.  According  to  this  proj- 
ect, which  was  sent  in  advance  by  the  Secretariat  to  all  members  of 
the  Advisory  Committee,  the  International  Court  of  Justice  was  to  be 
compo-^ed  of  a  judge  appointed  by  each  state  for  a  period  of  six  years. 
This  court,  made  up  of  as  many  judges  as  there  were  members  of  the 


Plan  presented  to  the  Committee,  June  23rd. 


29 

League  of  Nations,  was  to  elect  its  president  and  vice  president,  and 
from  tliis  large  body,  more  properly  called  a  judicial  assembly  tban  a 
court,  a  section  was  to  be  formed  for  the  trial  and  disposition  of  each 
case.  The  section  was  to  be  composed  of  the  president  of  the  court, 
or  in  case  of  his  absence,  of  the  vice  president;  of  one  judge  chosen  by 
each  of  the  parties  in  litigation  from  among  the  members  of  the  court, 
and  four  judges  elected  by  secret  ballot  by  the  court  among  its  mem- 
bers. These  four  judges  of  the  temporary  tribunal  for  the  trial  of  the 
case  were  to  be  thus  selected:  each  member  of  the  court  was  to  vote 
for  two  names,  and  those  obtaining  the  majority  were  elected.  If, 
however,  because  of  the  number  of  parties  to  a  dispute,  it  happened 
that  a  section  was  composed  of  an  even  number  of  judges,  the  court 
would  elect  five  judges  among  its  members,  each  member  voting  for 
three  names.  In  case  of  tie  the  oldest  was  elected.  Finally,  if  one  of 
the  parties  failed  to  designate  its  judge,  then  the  court  itself  was  to  elect 
him  by  secret  ballot  or  by  special  vote.-^ 

This  exchange  of  views  disclosed  the  fact  thaf  in  1920,  in  the  Ad- 
visory Committee  of  .Jurists  assembled  at  The  Hague,  the  obstacle  in 
the  w^ay  of  the  constitution  of  a  Court  of  International  Justice  was  none 
other  than  the  obstacle  which  stood  in  the  way"  of  its  realization  at  the 
Second  Hague  Conference  in  1907.  That  obstacle  w^as  the  claim  of  the 
so-called  great  Powers  to  permanent  representation  in  the  court  irre- 
spective of  the  so-called  "equality  of  nations,"  and  the  claim  of  the 
so-called  small  states  that  the  principle  of  equality  should  be  strictly 
observed  in  the  formation  of  the  court  which  would,  at  least  in  theory, 
deprive  the  great  Powers  of  their  claim  to  permanent  representation, 
although  in  practice  the  judges  of  the  large  states  might  be,  or  indeed 
would  be  appointed  or  selected.  This  was  the  rock  on  which  the  Con- 
ference of  1907  split;  this  was  the  rock  on  which  the  Committee  of 
Jurists  of  1920  w^ould  split  unless  a  method  could  be  proposed  which 
would  reasonably  satisfy  the  claim  of  the  great  states  to  permanent 
representation,  without  apparent  violation  of  the  principle  of  equality 
for  which  the  small  states  have  stood,  now  stand,  and  always  must 
stand  if  justice,  irrespective  of  the  physical  power  of  the  states,  is  to 
prevail  between  nations.  For,  as  Joubert  has  so.  truly  and  happily 
said,  "There  are  two  Forces  which  rule  the  World:  Might  until  Right 
is  ready." 

That  method  was  proposed  by  Mr.  Root,  taking  advantage  of  the 
agencies  of  the  League  of  Nations,  and  taking  advantage  also  of  the 


■^  For  the  text  of  this  project,  see  Appendix,  p.  199. 


30 

experience  of  his  own  country  in  harmonizing  the  interests  of  the 
greater  states  with  the  principle  of  equality  demanded  by  the  smaller 
states  in  the  formation  of  the  American  union. 

The  delegates  of  the  American  states  which  met  in  conference  in 
Philadelphia  in  1787,  found  the  same  obstacle  in  their  way,  and,  unable 
to  remove  it,  circumvented  it  to  the  satisfaction  of  the  large  and  the 
small  states.  It  was  agi^eed  that  a  legislative  organ  of  the  union  should 
be  created,  to  consist  of  tw  o  branches.  In  the  House  of  Representatives, 
each  state  was  to  be  represented  according  to  its  population,  thus 
securing  to  the  larger  states  a  larger  representation  than  to  the 
smaller  states.  The  larger  states  proposed  that  the  second  chamber, 
called  the  Senate,  should  be  composed  in  the  same  way,  thus  assuring 
them  a  majority  in  that,  and  therefore  in  each  branch.  The  smaller 
states  were  willing  to  allow  this  method  to  be  applied  in  the  House  of 
Representatives,  but  insisted  that  in  the  Senate,  each  state,  large  or 
small,  should  have  an  equal  representation,  ultimately  fixed  at  two, 
after  weeks  of  discussion  and  a  threat  of  the  smaller  states  to  with- 
draw from  the  conference  rather  than  to  accept  the  inequality  of  rep- 
resentation.-- Wisdom  prevailed.  The  interests  of  the  large  states 
were  safeguarded  in  the  House  of  Representatives,  the  interests  of  the 
small  states,  more  numerous  than  the  large,  and  destined  alwa^^s  to  be 
more  numerous,  were  safeguarded  in  the  Senate;  and  that  there  might 
be  no  doubt  as  to  \he  right  of  equality  of  representation  in  the  Senate 
which  would  secure  for  all  time  the  rights  of  the  small  states,  it  was 
moved  and  unanimously  carried,  without  being  put  to  vote,  that  in 
any  amendment  to  the  Constitution,  no  state,  without  its  consent  should 
be  deprived  of  its  equal  suffrage  in  the  Senate.  This  proposal  was 
made  on  September  15th,  the  last  business  day  of  the  Conference, 
after  the  Constitution  which  was  signed  on  September  17,  1787,  had 
been  agreed  on,  to  ([uiet  "the  circulating  murmurs  of  the  small  States."^^ 

As,  however,   the  question  is   so  important  in   itself,   and   as   the 


^"  In  his  Debates  of  the  Federal  Convention,  Mr.  Madison,  of  the  big  state  of 
Virginia,  thus  reports  under  date  of  June  15,  1787,  Mr.  Dickinson,  delegate  from 
Delaware,  the  smallest  state  represented  and  the  second  smallest  of  the  Union: 
"You  sec  the  consequence  of  pushing  things  too  far.  Some  of  the  members  from 
the  small  States  wish  for  two  branches  in  the  General  Legislature,  and  are  friends 
to  a  good  National  Government;  but  we  would  sooner  submit  to  a  foreign  power, 
than  submit  to  be  deprived  of  an  equality  of  suffrage,  in  both  branches  of  the  legis- 
lature, and  thereby  be  thrown  under  the  domination  of  the  large  States."  Documen- 
tary History  of  the  Constitution  of  the  United  States,  Vol.  TIT  (inOO),  pp.  124-125. 

23  Ihid'.,  p.  758. 


31 

unanimous  adoption  of  this  nielhod  by  the  Advisory  Committee  sug- 
gests the  probability  of  its  adoption  by  the  League  of  Nations,  it  is 
advisable  to  give  the  reasons  for  and  the  form  of  the  proposal  as  stated 
by  Mr.  Hoot  in  the  session  of  June  18th. 

Without  questioning  the  theory  of  the  equal  rights  of  sovereign 
states  which,  as  he  truly  said,  "is  the  foundation  of  the  law  of  nations," 
and  recognizing,  on  the  other  hand,  that  states  possessing  large  masses 
of  people  have  practical  interests  depending  upon  "their  production, 
their  trade,  their  commerce,  their  activity,"  larger  than  those  of  other 
equal  sovereign  states  with  less  production,  trade,  commerce  and  ac- 
tivity, Mr.  Root  asked  if  some  method  of  constituting  the  court  could 
not  Ke  found  which  would  be  consistent  with  the  two  principles, 
namely,  "the  one  coming  from  the  constituted  and  indisputable  point 
of  legal  equality  of  states  and  the  other  from  the  practical  point  of  view 
of  a  deep  and  extensive  practical  interest  in  the  subject."  This,  he 
said,  was  the  problem,  and  it  was  not  a  problem  confined  alone  to 
nations.  It  was  to  be  found  within  any  free  country  where  citizens  are 
called  upon  to  determine  some  question  regarding  which  they  have 
each  equal  rights  politically,  but  in  which,  as  a  matter  of  fact,  some 
have  more  practical  interest.  On  this  phase  of  the  subject,  Mr.  Root 
spoke  as  an  American,  referring  to  the  experience  of  his  own  country : 

"Allow  me,"  he  said,  "to  refer  to  an  example  which  naturally 
arises  in  the  mind  of  an  Ainerican.  When  the  present  Constitution  of 
the  United  States  was  formed  there  was  precisely  the  same  kind  of 
question  raised  in  the  Convention  of  1787.  We  were  all  independent, 
sovereign  states — some  large,  some  small.  The  large  states  were  unwill- 
ing to  permit  the  majority  of  the  smaller  ones  the  control  which  would 
come  from  equal  representation,  and,  on  the  other  hand,  the  smaller 
states  were  unwilling  to  allow  to  the  larger  ones  the  preponderance  of 
power  which  would  arise  from  the  recognition  of  their  greater  popula- 
tion and  wealth." 

How  were  these  divergent  points  of  view  reconciled?  "That  im- 
passe was  disposed  of  by  the  creation  of  two  chambers,  in  one  of  which 
the  states  are  represented  equally,  and  another  in  which  the  popula- 
tion is  represented  without  reference  to  the  sovereign  states  in  which  the 
people  reside."  Mr.  Root  did  not  propose  that  this  method  be  accepted 
as  such.  Without  dwelling  further  upon  this  matter,  and  using  it  only 
to  show  how  different  interests  could  be  reconciled,  Mr.  Root  called  at- 
tention to  the  Peace  Conference  at  Paris,  conqjosed  of  representatives 
of  large  and  small  states  which,  without  satisfying  the  views  of  either, 
created  the  League  of  Nations,  in  one  chamber  of  which,  the  Assembly, 


32 

every  Power  great  and  small  is  equal  to  every  other,  and  in  the  other 
chamber,  the  Cotincil,  there  is  a  preponderance  of  the  great  Powers : 

"I  beg  to  suggest,"  Mr,  Root  continued,  "for  the  consideration  of 
my  colleagues,  whether  possibly  the  election  of  judges  by  the  concur- 
rent vote  of  the  Assembly  and  the  Council  might  not  point  out,  for  our 
purpose,  the  same  solution  of  this  difficult  question  which  already  has 
been  accomplished  on  the  political  side.  That  would  have  several  ad- 
vantages. The  effect  of  the  necessity  of  concurrent  action  by  two  bodies 
is  that  neither  one  can  do  anything  which  is  oppressive  in  respect  to  the 
interests  specifically  represented  by  the  other.  That  is  so  in  the  mak- 
ing of  all  laws,  and  it  is  so  when  appointments  are  to  be  made  by  legis- 
lative bodies.  The  effect  of  the  j^ractical  working  would  be,  that  in  the 
Assembly,  where  the  smaller  Powers  are  in  majority,  they  would  pro- 
tect the  interests  of  the  smaller  states,  and  that  in  the  Council  the  larger 
Powers  having  a  preponderance  would  protect  such  practical  interests 
of  their  greater  trade  and  their  greater  production  and  the  greater  in- 
terests as  would  be  submitted  to  the  court." 

In  the  event  of  a  difference  between  the  Assembly,  on  the  one 
hand,  and  the  Council,  on  tlie  other,  a  small  committee  of  conference 
could  be  appointed  which,  Mr.  Root  said,  was  the  practical  method  of 
reconciling  differences  between  two  bodies,  again  drawing  upon  his 
experience  as  an  American  and  as  a  Senator  of  the  United  States. 

In  addition  to  its  intrinsic  merit,  this  method  had  the  wery  great 
advantage  which  could  not  well  be,  and  indeed  was  not  lost  upon  his 
colleagues,  of  recognizing  the  power  of  the  Council  to  which  the  Ad- 
visory Committee  was  to  report  its  plan  and  also,  as  far  as  the  Council 
was  concerned,  the  power  of  the  Assembly  to  which  the  Council  would 
report  its  project. 

At  the  session  of  June  21st,  Mr.  Root  further  explained  his  project, 
saying  in  his  opening  remarks,  that  there  appeared  to  be  two  funda- 
mental principles  laid  down  by  the  members  of  the  Advisory  Commit- 
tee with  which  all  agreed, — that  the  end  to  be  attained  is  justice  and 
that  the  equality  of  sovereign  states,  to  which  proposition  all  the  mem- 
bers were  agreed,  must  be  maintained,  as  it  is  "the  substratum  which 
underlies  the  law  of  nations;  without  that  there  is  no  law,  and  we  re- 
turn to  the  days  of  barbarism  and  unrestrained  brute  force." 

In  regard  to  the  first  principle,  Mr.  Root  said  that  the  task  is  one  of 
the  adaption  of  means  to  an  end.  In  applying  the  second  principle  it 
is  necessary  to  consider  the  nature  of  the  transaction  and  to  see  whether 
the  principle  really  covers  that  transaction.  As  the  principal  of  equality 
was  invoked,  Mr.  Root  found  it  necessarj^  to  define  the  equality  of  states 
and  to  see  whether  in  reality  it  entered  into  the  appointment  of  a  court. 
In  his  opinion  the  principle  was  definitely  limited.    Thus: 


33 

The  equality  of  states  does  not  mean  that  they  are  equal  in 
number,  in  extent  of  territory,  in  wealth,  in  power;  it  means  that  they 
are  equal  in  the  sovereign  right  to  control  their  own  actions  and  to  free- 
dom of  accountability  to  others.  It  relates  to  the  rights  of  each  state 
over  its  own  territory,  its  own  subjects  or  citizens.  Every  state  is  ex- 
ercising that  right  in  agreeing  or  refusing  to  agree  to  any  arrangements 
we  propose.  Monaco,  Luxemburg,  Haiti,  San  Domingo,  have  the  same 
inalienable  right  to  consent  or  refuse  to  consent  as  Great  Britain  or 
France.  That  is  the  exercise  of  equality.  In  brief,  it  is  equality  in  the 
exercise  of  the  rights  of  sovereignty. 

So  much  for  equality  in  general.  Passing  now  to  the  specific  appli- 
cation, Mr.  Root  said : 

When,  however,  we  come  to  the  creation  of  a  court,  we  pass  be- 
yond the  exercise  of  the  rights  of  sovereignty.  In  naming  or  constitu- 
ting a  court  which  is  to  render  judgments  limiting  the  rights  of  nations, 
we  shall  not  be  merely  exercising  the  powers  of  sovereignty.  What 
sovereign  right  has  France  to  limit  the  sovereignty  of  Italy,  of  Great 
Britain?  What  sovereign  right  has  Italy  to  name  a  judge  to  say  if  the 
power  of  France  should  be  limited?  From  whence  does  this  power 
come?  From  the  sovereignty  of  Italy?  It  comes  from  consent,  it  has 
its  origin  in  consent;  not  in  the  theory  of  sovereignty,  not  in  the  law  of 
nations;  it  is  purely  conventional.  The  right  of  Italy  to  name  a  judge 
who  can  give  decisions  limiting  the  sovereign  rights  of  France. comes 
not  from  the  sovereignty  of  Italy  but  from  the  consent  of  France. 

So  much  for  the  equality  w^hich  was  alleged  to  rest  in  sovereignty. 
Pursuing  the  matter  further  and  showing  how  the  nations  forsake 
sovereignty  when  they  pass  into  the  domain  of  consent  in  the  appoint- 
ment of  a  judge  to  pass  upon  their  actions,  Mr.  Root  continued:  "As 
the  function  to  be  observed  is  a  function  not  resting  in  sovereignty,  but 
resting  in  consent,  then,  in  determining  whether  the  consent  should  be 
given  mutually  and  upon  what  terms,  we  must  consider  not  merely  the 
theory  of  national  equality,  but  the  conditions  and  circumstances  of  the 
agreement  which  we  are  proposing  to  make." 

As  an  illustration  of  the  way  in  which  nations  take  into  account  the 
greater  interests  which  thej^  may  have  in  a  subject-matter,  Mr.  Root 
called  attention  to  the  Universal  Postal  Union,  in  which  the  states 
divided  themselves  into  seven  classes  according  to  the  benefits  which 
they  expected  to  derive  from  the  convention  and  according  to  their  re- 
sources for  bearing  the  expense.  Austria-Hungar>%  France,  Germany, 
Great  Britain,  Italy,  Japan,  Russia  and  the  United  States  pay  many 
times  more  than  the  smaller  states.  In  the  same  way,  and  for  a  like  rea- 
son, the  League  of  Nations,  Mr.  Root  thought,  provided  that  the  members 


34 

of  the  League  should  bear  its  expense  in  the  proportions  of  the  Uni- 
versal Postal  Union. 

Equality,  continued  Mr.  Root,  obtains  in  diplomatic  conferences, 
where  the  rule  of  unanimity  prevails,  but  when  the  nations  "submit 
anything  to  the  determination  of  a  majority,  you  have  left  the  field  of 
sovereignty  and  subjected  yourself  to  the  application  of  other  considera- 
tions than  those  of  the  equality  of  states."  Progress  is  not  attained  by 
the  mere  repetition  that  the  purpose  we  have  in  mind  is  justice,  and  the 
mere  agreement  to  obtain  justice  accomplishes  nothing.  "What  we  are 
to  seek,"  he  said,  "is  a  practical  means  of  so  limiting  the  weaknesses,  the 
passions,  of  so  enlightening  the  ignorance  and  awakening  the  understand- 
ing of  men  engaged  in  the  affairs  of  nations  that  there  will  be  the  high- 
est possible  probability  of  justice  being  done."  And  the  fact  that  power 
is  to  be  curbed  merely  divides  the  states  into  large  and  small  states.  It 
is  not  the  power  of  Haiti  or  of  San  Domingo  which  is  to  be  curbed,  but 
the  power  of  France,  of  Great  Britain,  of  the  United  States:  "We  are 
not  called  upon  by  the  general  voice  of  the  civilized  world  to  make  an 
effort  towards  the  establishment  of  a  court  to  curb  the  power  of  Nor- 
way; of  Holland.  The  Great  Powers,  with  their  immense  armies  and 
navies,  in  the  presence  of  which  the  smaller  nations  of  the  world  feel 
that  their  lives  are  in  danger  unless  justice  prevails  and  a  practical 
method  of  securing  justice  be  agreed  on,  are  to  be  curbed." 

The  conclusion  necessarily  flowing  from  these  premises  was  that 
the  court  would  curb  the  power  of  the  great  nations,  on  the  one  hand, 
and  grant  protection  to  the  smaller  nations  on  the  other.  This  being  the 
case,  it  also  followed  that  the  surrender  would  chiefly  be  made  by  the 
great  states;  that  the  small  states  would  surrender  practically  nothing, 
but  that  they  would  get  "protection,  which,"  as  Mr.  Root  aptly  said,  "the 
great  Powers  do  not."  In  other  words,  "One  is  the  group  that  is  giving, 
another  the  group  that  is  receiving,  and  you  can  not  solve  a  question  of 
that  description  which  affects  different  states  in  a  different  manner,  in 
which  the  states  have  different  kinds  of  interests,  by  the  application  of 
the  theory  of  the  equality  of  states."  It  must  be  dealt  with  upon  the 
basis  of  the  realities  to  be  affected,  and,  as  Mr.  Root  said,  "it  is  not  rea- 
sonable to  suppose  that  these  great  states  will  consent  to  have  their 
power  limited,  to  surrender  of  their  sovereignty  to  a  tribunal,  the  con- 
stitution of  which  is  to  be  entirely  within  the  control  of  the  smaller 
states.  The  simple  constitution  of  the  court  by  a  majority  of  equal 
states  would  place  them  in  the  hands  of  the  smaller  states  who  give 
little  and  get  much,  and  always  they  would  have  the  power  to  override 
the  larger  states  which  give  much  and  get  little." 


35 

Mr.  Root  next  called  attention  to  the  fact  that  states  could  not  be 
looked  upon  as  mere  abstractions,  as  though  they  were  not  composed  ot 
individual  human  beings,  and  that  the  progress  of  democracy  makes  the 
peoples  of  the  different  countries  masters  of  the  situation.  The  foreign 
offices  may  indeed  negotiate,  but  the  people  decide,  and  because  of  this 
fact,  a  decision  can  not  be  accepted  by  foreign  offices  which  will  not  be 
acceptable,  to  the  people.  It  is  a  fundamental  principle  of  democracy, 
that  the  inhabitants  of  one  country  think  their  opinions  are  not  less  en- 
titled to  respect  than  the  opinions  of  those  in  other  countries.  This 
being  the  case,  he  said,  if  you  ask  the  one  hundred  million  people  of  the 
United  States  "to  consent  to  the  sovereign  rights  of  their  country  being 
limited  in  a  court  in  which  the  one-half  million  in  Honduras  can  out- 
vote them,  all  the  foreign  offices  in  Christendom  can  never  succeed  in 
getting  this  recognized." 

Then  again,  "there  are  backward  nations,  many  quite  shut  up  within 
themselves,  some  of  them  centuries  back  in  political  development," 
which  have  the  least  interest  in  the  court.  Yet,  upon  the  theory  of 
equality,  they  would  have  an  equal  vote  with  the  more  advanced,  pro- 
gressive and  larger  nations.  Again,  among  some  of  the  countries  which 
would  benefit  by  the  theorj'^  of  equality,  and  which  would  participate  in 
the  election  of  judges  on  an  equal  footing,  are  those  in  which  the  prin- 
ciple of  extcrritorality  is  still  applied,  and  we  would  have  the  strange 
spectacle  of  these  very  nations  determining  the  membership  of  a  court 
before  whose  bar  the  larger  Powers  were  to  be  summoned,  when  these 
Powers  are  unwilling  to  trust  to  the  conception  of  justice  obtaining  in 
this  class  of  countries  and  insist  in  having  courts  of  their  own  for  the 
trial  of  cases  affecting  their  subjects  and  citizens.  And  then  too,  human 
nature  being  what  it  is,  nations  being  what  they  are,  nations  might  com- 
bine to  secure  the  appointment  of  judges  from  certain  states  to  the 
exclusion  of  judges  from  other  states. 

These  two  addresses  by  Mr.  Root  made  a  great  impression  upon  the 
Advisory  Committee,  Mr.  Hagcrup  saying,  in  the  session  of  June  21st, 
that  iMr.  Root  had  suggested  an  idea  which  might  serve  as  the  basis  of 
compromise;  that  this  would  indeed  accord  to  the  great  Powers  a 
formal  and  explicit  preponderance;  but  that  the  system  took  account 
of  the  principle  of  equality  in  giving  to  all  the  Powders  a  vote  in  the 
Assembly,  and  in  the  Assembly  the  smaller  Powers  have  the  majority. 
This  concession  on  the  part  of  the  large  states,  Mr.  Hagerup  felt,  re- 
quired a  concession  on  the  part  of  the  smaller  states;  that  this  conces- 
sion was  to  be  found  in  the  influence  accorded  to  the  Council;  and  that 
it  was  only  along  these  lines  that  the  solution  could  be  found. 


36 

Lord  Phillimore,  following  Mr.  Hagerup,  stated  that  he  was  very 
much  impressed  by  Mr.  Root's  views  as  expressed  in  the  session  of  the 
18th,  and  that  he  had  endeavored  to  state  them  in  the  following  project 
of  five  articles,  which  he  thereupon  read: 

1.  The  judges  of  the  High  Court  are  appointed  by  the  joint 
authority  of  the  Council  and  of  the  Assembly  of  the  League  of 
Nations. 

2.  The  Council  votes  a  list  which  is  transmitted  to  the  As- 
sembly. 

3.  The  Assembly  considers  the  list  voted  by  the  Council  and 
any  names  brought  before  it  as  candidates  by  any  state  which  is 
a  member  of  the  Assembly  and  then  votes  its  list. 

4.  The  names  which  are  found  on  both  lists  are  then  deemed 
to  be  elected. 

5.  As  to  the  residue  the  Council  votes  afresh  and  the  As- 
sembly votes  afresh  and  so  they  continue  until  a  final  agreement 
is  reached. 

Thereafter,  the  discussion  centered  about  Mr.  Root's  method  of 
appointing  the  judges.  Reduced  to  the  form  of  articles  by  Lord  Philli- 
more, it  was  commonly  called  the  Root-Phillimore  Plan,  just  as  at  a 
later  stage  the  various  articles  (including  the  method  of  appointing  the 
judges)  on  the  organization  of  the  court  presented  by  Mr.  Root  and 
Lord  Phillimore,  and  upon  which  this  part  of  the  project  is  based,  were 
called  the  Root-Phillimore  Plan. 

The  Committee  met  on  the  22nd  with  their  minds  inclined  towards 
Mr.  Root's  proposal.  Lord  Phillimore  had  already  accepted  it  without 
hesitation  and  without  reserve  and  had  reduced  its  main  principles  to 
articles.  Mr.  Hagerup  had  already  signified  his  acceptance  of  the  elec- 
tion of  the  judges  b}^  the  concurrent  action  of  the  Council  and  the  As- 
sembly of  nations,  although  he  would  have  preferred  the  election  by 
the  Assembly,  in  which  each  nation  met  upon  the  basis  of  equality  and 
had  but  one  vote,  rather  than  by  the  cooperation  of  the  Council,  in 
which  the  principle  of  equality  was  violated  by  the  continuous  repre- 
sentation of  the  large  nations  forming  a  majority  of  its  members. 

A  proposal  of  Mr.  Altamira  presented  to  the  Committee  on  the  22nd 
was  based  upon  the  participation  of  the  Council  and  the  Assembly  in 
the  election  of  judges.  The  project  of  the  same  date  by  Mr.  Adatci 
likewise  accepted  the  participation  of  these  bodies,  although  to  secure 
the  permanent  representation  of  the  great  Powers  he  proposed  that 
five  of  the  judges  of  the  proposed  court  should  be  elected  by  the  Coun- 
cil and  eight  by  the  Assembly.  Mr.  Justice  Lodcr  stated  his  acceptance 
of  the  method  in  an  address  made  at  the  beginning  of  this  session;  and 


37 

during  its  course  Mr.  de  Lapradclle  also  declared  himself  in  favor  of  it. 

It  thus  appeared  that  on  the  22nd  of  June  Mr.  Root's  proposed  method 
had  found  favor  at  least  with  seven  of  the  nine  memhers  then  compos- 
ing it,  excluding  Mr.  Fernandes  as  he  was  only  recognized  later,  to- 
ward the  close  of  the  Conference,  as  a  member  in  place  of  Mr.  Bevilaqua. 

Mr.  Justice  Loder  had  been  especially  impressed  by  Mr.  Root's 
address  of  the  21st,  saying  of  the  Root-Phillimore  Plan,  in  a  carefully 
prepared  address  which  he  read  to  his  colleagues  on  the  22nd,  "I  should 
like  to  begin  by  complimenting  Mr.  Root  on  the  speech  which  he  made 
j-esterday,"  and  he  continued  with  an  admirably  brief  and  accurate  sum- 
mary of  that  address  which  had  produced  conviction  upon  him  and  had 
assured  a  method  of  composing  the  court:  "The  equality  of  states  is 
based  on  their  sovereignty.  Sovereignty  is  the  right  to  be  absolutely 
master  at  home  to  conduct  all  one's  own  affairs  exactly  as  ma}"-  seem 
best.  But  this  in  no  way  implies  the  right  to  mix  in  other  peoples' 
affairs,  and  even  to  exercise  a  certain  control  over  them.  An  election 
carried  out  by  an  electoral  college  which  has  the  power  to  make 
decisions  between  sovereign  states  must  be  based  on  an  agreement. 
This  agreement  is  made  by  equal  sovereign  states,  and  the  fact  that  it 
is  an  agreement  in  no  way  affects  the  equality.  Consequently,  the  only 
difficulty  consists  in  finding  a  method  of  carrjdng  out  this  election  which 
will  defend  the  great  states  against  the  little,  as  well  as  the  little  against 
the  great.    The  argument  appears  to  me  well  founded." 

Mr.  Justice  Loder  then  said,  "Let  us  see  if  the  project  of  Lord  Philli- 
more,  which  outlines  such  an  agreement,  will  meet  the  case."  But  before 
doing  so;  it  is  advisable  to  recur  to  a  previous  portion  of  Mr.  Justice 
Loder's  address  in  which  he  speaks  of  certain  features  of  Baron  Des- 
camps'  plan  which  seemed  to  him  to  be  acceptable  and  which,  as  a 
matter  of  fact,  were  found  acceptable  not  only  to  him  but  to  the  Com- 
mittee. It  is  well  to  state  these  features  in  the  language  of  Mr.  Justice. 
Loder,  whose  views  on  this  occasion  and  the  form  in  which  they  were 
put  impressed  his  colleagues,  tended  to  clear  up  the  situation  and 
to  form  the  basis  of  the  agreement  upon  the  method  of  selecting  the 
judges  ultimately  adopted  by  the  Committee. 

The  fundamental  idea  of  Baron  Descamps'  plan,  Mr.  Justice  Loder 
said,  attracted  him  very  much. 

This  for  two  reasons :  Firstly,  because  it  evolves  the  new  court 
from  the  work  done  at  The  Hague  by  the  Peace  Conferences.  Also  it 
entails  a  system  of  unification  of  the  organization  of  international  law 
throughout  the  world.  It  seems  to  me  that  the  realization  of  this  idea 
is  very  desirable.  If  I  am  not  mistaken,  Mr.  Root  has  also  expressed  his 
adherence  to  this  plan. 


.'5H8185 


38 

In  the  second  place,  I  very  much  like  the  idea  of  giving  an  active 
part  in  the  election  of  judges  for  the  future  court  to  such  an  important 
body  of  jurists,  whose  authority  is  so  widely  recognized.     ... 

What  pleases  me  in  the  system  proposed  by  Baron  Descamps  is 
that  he  has  found  the  best  means  of  providing  good  candidates,  but  I 
do  not  agree  when  he  gives  the  Assembly  no  part  to  play.  It  is  a  case 
where  the  saying  "siir  vous,  sans  vous"  applies. 

And  in  order  to  reinforce  his  view  as  to  the  role  which  the  As- 
sembly should  play  in  the  economy  of  the  scheme,  Mr.  Justice  Loder 
repeated  the  substance  of  an  interview  which  he  had  recently  had  with 
Mr.  Leon  Bourgeois: 

Do  not  forget  that  if  you  want  to  keep  to  practical  methods,  you 
must,  whatever  j^our  system  may  be,  give  a  more  or  less  active  role  to 
the  Assembly,  for  the  Assembly  is  the  body  representing  the  nations 
themselves,  according  to  the  Covenant,  the  body  which  will  have  the 
final  decision  in  the  matter  of  the  organization  of  the  court,  and  it  would 
never  consent  to  be  passed  over  when  the  election  of  the  persons  com- 
posing the  court  was  under  consideration. 

Turning  now  to  the  Boot-Phillimore  Plan,  Mr.  Justice  Loder  said: 

It  seems  to  me  there  is  no  objection  to  the  fundamental  idea  that 
there  must  be  collaboration  between  the  Assembly  and  the  Council,  but 
the  method  employed  in  the  working  out  of  this  idea  seems  to  me  open 
to  criticism. 

The  Assembly  and  the  Council  each  prepare  a  list.  Those  who 
appear  on  both  lists  are  considered  elected.  In  reality,  it  does  not  ap- 
pear likely  that  this  would  happen.  The  list  of  the  Council  in  which  the 
great  states  have  a  majority  would  probably  onl}^  contain  the  names  of 
the  subjects  of  the  great  states. 

The  Council,  knowing  that  the  lesser  states  have  a  great  majority 
in  the  Assembly,  and  naturally  fearing  combinations  and  intrigues, 
would  try  to  insure  the  election  of  as  great  a  number  as  possible  of 
their  representatives. 

The  Assembly  receives  the  list  of  the  Council  and  according  to 
Article  3  of  the  project,  adds  to  it  all  the  names  proposed  by  the  different 
states  and  in  this  way  the  final  list  is  prepared. 

After  this  short  statement,  Mr.  Justice  Loder,  with  whom  it  is  a  duty 
to  express  his  opinion  freely  and  without  reserve,  whether  it  be  favor- 
able or  unfavorable,  then  performed  this  duty: 

What  pleases  me  in  the  proposal  made  by  Lord  Phillimore  is 
that  he  gives  the  decision  to  the  two  principal  bodies  of  the  League  of 
Nations,  and  he  intends  them  to  work  together  for  the  common  good 
in  the  formation  of  the  most  important  institution  of  the  League. 

That  which   does  not  please  me  is  that  he  has  opened  the  door 


39 

wide  to  political  intrigues,  and  that  his  project  gives  no  security  or  even 
probability  that  the  persons  who  ought  to  be  elected,  will  obtain  the 
places  to  which  they  are  entitled. 

To  preserve  the  good  of  the  Root-Philliniore  project,  and  to  elimi- 
nate from  it  what  he  conceived  to  be  the  possible  defects,  Mr.  Justice 
Loder  advocated  the  acceptance  of  certain  features  of  the  plan  pro- 
posed by  Baron  Descamps.  "Who  is  more  likely,"  he  said,  "to  know  the 
great  jurists,  who  are  also  great  men,  trained  in  public  affairs  and 
capable  of  being  entrusted  with  the  task  of  administering  justice,  than 
the  body  of  international  arbitrators?"  This  question  he  answered 
indirectly  in  the  following  manner: 

It  should  therefore  be  their  task  to  compose  a  list  of  candidates, 
or  states  may  be  given  the  right  of  making  recommendations  to  them; 
it  may  be  laid  down  that  the  list  of  names  recommended  by  them  should 
be  accompanied  by  a  list  of  refused  names;  they  may  be  given  the  task 
of  adding  comments  to  the  names  recommended  as  well  as  to  those 
refused.  But  the  list  prepared  by  them  must  be  the  list,  the  definite 
list,  outside  of  which  no  selection  may  be  made. 

This  list  should  be  presented  to  the  Assembly  and  the  Council. 

Now  let  us  set  in  motion  the  electoral  machine  contained  in  Lord 
Phillimore's  proposal.  Now  let  the  two  bodies  try  to  come  to  an  under- 
standing on  the  selection  to  be  made  from  these  candidates,  which  have 
at  least  l3een  prepared  by  a  competent  body,  which  can  not  be  suspected 
of  any  ulterior  motive. 

In  this  way  it  seems  to  me  we  shall  have  accorded  to  the  principal 
institutions  of  the  League  that  which  is  due  to  them,  and  they  will  have 
been  prevented  injuring  the  world  by  their  incapacity  or  ill-will;  by 
their  intrigues  and  conspiracies. 

Immediately  upon  the  conclusion  of  Dr.  Loder's  carefully  prepared 
address,  Mr.  de  Lapradclle,  after  examining  and  rejecting  Baron  Des- 
camps' proposition  to  have  the  Permanent  Court  of  Arbitration  elect 
the  judges  of  the  Permanent  Court  of  Justice,  accepted  in  principle  and 
amended  in  detail  Mr.  Root's  method  of  electing  the  judges  by  the  con- 
current action  of  the  Assembly  and  Council. 

Raron  Descamps'  plan,  he  said,  "tends  to  reestablish  the  historical 
connection  which  was  broken  by  the  Covenant  of  the  League  of  Nations 
when  it  set  up  a  new  international  organism  without  considering  insti- 
tutions already  in  existence.  The  idea  connects  the  future  with  the  past 
on  the  basis  of  the  work  of  1907.  It  has  also  the  advantage  of  providing 
for  the  coexistence  of  the  new  court  and  the  old  Court  of  Arbitration." 
The  plan  had  a  further  advantage  in  that  it  protected  in  fact  the  equality 
of  states. 


40 

But  on  the  other  hand.  Baron  Descamps'  scheme  was  open  to  two 
serious  objections:  first,  the  members  of  the  Court  of  Arbitration  were 
"only  half  jurisconsults,  the  other  half  politicians";  secondly,  election 
of  the  judges  by  the  Court  of  Arbitration  would  make  the  Court  of 
Justice  depend  upon  the  Court  of  Arbitration,  "The  Court  of  Arbi- 
tration and  the  Permanent  Court,"  he  rightly  said,  "must  be  two 
parallel  and  independent  institutions  with  different  tasks.  They  must 
not  overlap  nor  must  they  draw  their  authority  from  the  same  source." 
Mr.  de  Lapradelle,  therefore,  felt  obliged  to  reject  Baron  Descamps' 
plan  and  to  give  his  adherence  to  Mr.  Root's  method  which  had  "the 
great  advantage  of  satisfying  the  susceptibilities  of  those  who  wished  to 
see  realized  the  principle  of  the  equality  of  states  and  of  those  who 
wished  to  give  a  special  influence  to  those  states  which  have  made  the 
greater  sacrifices  to  the  cause  of  justice."  He  foresaw,  however,  a  possi- 
blit}^  of  disagreement  between  the  Assembly  and  Council  which  should 
be  obviated,  inasmuch  as  the  Assembly  represented  the  equality  of  states, 
the  Council  the  specially  privileged  states.  Before  stating  his  amend- 
ment, he  expressed  the  opinion  that,  in  order  "to  obtain  as  much  ad- 
vantage as  possible  from  the  principle  laid  down  by  Mr.  Root,"  the 
judges  should  require  for  election  a  two-thirds  majority  in  the  Assembly 
and  Council.  In  such  a  case,  a  deadlock  might  occur  if  the  joint  com- 
mission of  three  members  from  each  of  these  bodies  might  not  be  able 
to  agree,  or  if  the  Assembly  and  Council  might  not  accept  its  report. 
At  this  point  Mr.  de  Lapradelle  proposed  recourse  to  "a  special  com- 
mission appointed  beforehand  from  among  the  members  of  the  Court 
of  Arbitration."  In  subsequent  elections,  when  it  was  only  necessary 
to  fill  vacancies  by  the  selection  of  a  judge  or  two,  the  court  itself  might 
elect.  By  such  a  method  as  this,  he  thought  that  the  Assembly  and 
Council  could  be  forced  to  agree,  and  he  felt  it  was  right  in  creating  an 
organ  to  form  part  of  the  League  of  Nations,  that  "the  election  should 
be  entrusted  to  the  two  chief  organs  of  this  League." 

Thereupon  Mr.  Root  read  to  the  Committee  the  following  memo- 
randum which  he  had  prepared  and  in  which  he  had  incorporated  the 
views  which  he  believed  to  be  held  by  various  members  of  the  Com- 
mittee, humorously  saying  that  he  claimed  no  copyright  upon  it,  and 
admitting  tlinl  it  was  "stolen  property": 

1.  Election  by  Assembly  and  Council. 

2.  Qualifications  of  candidates  to  be  judicial  eminence  and 
character. 

3.  List  of  persons  deemed  to  be  qualified  to  be  furnished 
before  meeting  of  Assembly  by  the  members  of  the  Permanent 


41 

Court  of  Arbitration  at  The  Hague — the  members  appointed  by 
each  nation  to  propose  not  less  than  two  nor  more  than  four 
names,  one-half  to  be  from  nations  other  than  that  by  which  the 
proposals  are  appointed. 

4,  Votes  on  the  list  thus  formed  as  provided  by  Lord  Philli- 
more. 

5,  As  far  as  vacancies  may  remain  not  filled  by  election 
from  this  list  other  names  may  be  proposed  by  the  Assembly  and 
Council  to  be  considered  and  voted  upon  in  like  manner. 

6,  In  all  elections  all  electors  to  be  under  honorable  obliga- 
tion to  regard  the  qualifications  and  to  seek  adequate  representa- 
tion in  the  court  for  the  different  systems  of  jurisprudence  ex- 
isting among  civilized  peoples. 

In  explanation  of  his  memorandum,  Mr.  Root  stated  that  he  assumed 
two  fundamental  propositions:  "That  the  Permanent  Court  of  Arbi- 
tration at  The  Hague,  which  now-  exists,  should  remain,  not  be  super- 
seded, and  that  the  new  court  should  form  a  part  of  the  judicial  sj-stem 
of  which  the  old  court  is  a  part."  He  then  proceeded  to  point  out  that 
the  disputes  between  nations  were  of  varied  kinds  and  that  there  would 
be  a  need  for  each  institution,  the  one  to  administer  law  in  the  strict 
sense  of  the  word,  and  the  other  to  do  justice  in  a  large  and  untechnical 
sense.  "There  are  four  different  functions  to  be  allotted  to  these  two 
different  judicial  institutions: 

"1.  To  determine  questions  of  strict  law  and  questions  arising 
from  contracts. 

"2.  To  determine  questions  depending  upon  the  principles  of 
justice  applicable  in  the  absence  of  rules  of  strict  law  or  contract  pro- 
visions. 

"3.  To  determine  facts  which  are  unknown  or  are  disputed. 

"4.  Conciliation." 

Having  thus  defined  from  the  nature  of  the  controversies  the  sphere 
and  need  of  each  tribunal,  Mr.  Root  proceeded  to  advance  reasons  which 
in  his  opinion  made  a  participation  of  the  Permanent  Court  of  Arbi- 
tration advisable  in  the  formation  of  a  new  court, — a  participation  in 
the  selection  of  judges,  not  in  their  election,  as  the  election  of  officers  or 
magistrates  should  proceed  from  political  power,  that  is,  from  the  states 
themselves. 

"I  think,"  he  said,  "that  the  participation  of  members  of  the 
Permanent  Court  of  Arbitration  is  very  desirable,  because  we  have  in 
that  list  men  who  are  recognized  in  each  country  as  being  specially 
familiar  with  the  subject  willi  which  the  court  is  to  he  familiar,  and  with 
the  personnel  in  other  countries  which  are  interested.     .     .     . 


42 

"I  think  that  the  participation  of  the  members  of  the  Permanent 
Court  of  Arbitration  rather  comes  at  the  beginning  than  at  the  end  as 
suggested  by  Mr.  de  Lapradelle.  If  it  comes  at  the  end  it  would  be  as 
arbitrators  to  determine  a  difference  between  the  Council  and  the  As- 
sembly. 

"It  is  only  the  final  decision  which  is  important.  The  pressure  of 
necessity  will  be  more  valuable  than  the  power  of  decision  by  someone 
else.  The  legislation  of  the  world  practically  is  accomplished  in  the 
same  way;  differences  between  two  opinions  are  reconciled  under  the 
pressure  of  necessity;  there  must  be  a  law  on  such  and  such  subject, 
and  the  advocates  of  the  opinions  which  differ  are  compelled  to  recon- 
cile their  differences,  because  there  must  be  a  law.  Here  must  be  jus- 
tice, and  if  electors  do  not  agree  they  are  condemned  for  incapacity.  If 
the  members  of  the  court  have  the  opportunity  to  propose  this  list,  the 
origin  of  it  will  be  a  guarantee  of  qualification,  and  if  the  electors  can 
not  agree  upon  one  named,  the  opportunity  to  propose  names  outside 
the  list  will  guarantee  that  someone  be  found." 

Passing  to  the  sixth  and  last  of  the  headings  contained  in  the  memo- 
randum, which  really  was  based  upon  the  instructions  which  he,  as  Sec- 
retary of  State,  gave  to  the  American  delegates  to  the  Second  Hague 
Peace  Conference,  he  said,  and  thus  concluded  his  remarks  on  this  oc- 
casion : 

I  think  that  the  last  proposal,  that  in  all  elections  the  electors  are 
under  an  honorable  obligation  to  regard  the  qualifications  stated  and 
to  seek  adequate  representation  on  the  court  for  the  different  systems  of 
jurisprudence,  I  think  this  is  a  view  in  which  we  all  agree,  and  it  seems 
to  me  that  that  includes  valuable  ideas  that  have  been  proposed  by  a 
member  of  the  Committee. 

The  attempt  of  Mr.  Root  to  harmonize  the  different  views  expressed 
by  the  Committee  appeared  to  have  succeeded.  Baron  Descamps,  how- 
ever, was  still  in  favor  of  having  the  judges  elected  by  the  members  of 
the  Permanent  Court,  instead  of  having  a  list  prepared  by  them,  and  he 
preferred  the  intervention  of  the  Assembly  to  that  of  the  Council,  the 
Assembly  recognizing  the  equality,  the  Council  the  inequalit}'^  of  states. 
But  although  he  failed  to  have  the  new  court  spring  from  the  Permanent 
Court  of  Arbitration  in  the  sense  that  the  members  of  that  body  should 
appoint  the  judges,  he  was  in  the  end  successful  in  procuring  a  unani- 
mous opinion  of  the  Committee  for  the  maintenance  of  that  institution 
and  its  participation  in  the  selection  of  judges,  for  without  the  con- 
tinued existence  of  the  Permanent  Court  of  Arbitration,  the  list  of  judges 
can  not,  according  to  the  system  actually  adopted,  be  prepared,  as  it  is 
to  be  prepared,  by  the  Court  of  Arbitration.  "The  Conference  at  Paris," 
he  said,  "was  wrong  in  presenting  the  Covenant  to  the  world  as  a  new 


43 

Gospel  and  the  Permanent  Court  as  an  institution  new  in  every  respect. 
As  justice  had  not  heen  done  to  the  institution  at  The  Hague,  the  mem- 
bers of  the  Committee  must  now  make  good  this  injustice."  But  he 
congratulated  the  members  upon  having  recognized  "that  the  new  court 
and  the  Court  of  Arbitration  are  bound  together." 

The  other  dissenting  voice  was  that  of  Mr.  Ricci-Busatti,  who,  like 
the  president,  not  only  wished  to  maintain  the  present  Court  of  Arbi- 
tration, but,  differing  from  the  president,  to  constitute  the  proposed 
Court  of  International  Justice  upon  substantially  the  same  principles, 
thus  preferring  a  series  of  temporary  tribunals  to  a  single  permanent 
Court  of  International  Justice.  He  admitted  that  the  Court  of  Arbi- 
tration only  consists  of  a  list  of  judges,  and  that  this  fact  explains  the 
infrequent  use  which  has  been  made  of  that  court.  He  thought,  how- 
ever, that  the  new  court  should  consist  of  a  shorter  list  of  judges  taken 
from  the  list  of  arbitrators,  and  that  from  this  new  list  the  judges 
should  be  chosen  to  sit  in  a  particular  case.  He  was  also  in  favor  of 
assuring  an  adequate  representation  of  the  different  judicial  systems, 
and  the  selection  of  the  judges  of  the  court  from  a  list  would  have,  he 
said,  "the  advantage  of  allowing  judges  to  be  chosen  who  possess  spe- 
cial qualifications  for  the  particular  case;  for  it  must  not  be  forgotten 
that  the  new  court  will  be  called  upon  to  try  cases  coming  from  all  parts 
of  the  world  and  that,  under  these  circumstances,  no  member  can  be 
qualified  to  deal  with  all  cases." 

Tlie  members  of  the  Advisory  Committee  had,  after  much  hesita- 
tion, made  up  their  minds.  Various  plans  had  been  proposed,  con- 
sidered and  found  wanting.  Mr.  Root's  plan  offered  a  waj^  out  with  a 
vista  of  a  Permanent  Court  of  Justice  on  the  horizon.  A  little  patience, 
a  little  more  time  and  the  Committee  would  be  unanimous. 

Tlie  situation  at  the  end  of  the  session  of  June  22nd,  after  which 
the  Committee  passed  to  other  questions,  to  return  to  the  composition 
of  the  court  at  a  later  period,  was  admirably  stated  by  Mr.  Hagerup, 
who  said,  according  to  the  official  minutes — 

He  was  convinced  that  a  solution  could  only  be  reached  by  mutual 
concessions.  A  basis  for  discussion  must  be  found.  He  did  not  tliink 
that  such  a  basis  could  be  found  in  cither  the  president's  or  his  own 
or  Mr.  Ricci-Busatti's  schemes.  The  only  plan  that  seemed  to  him  to 
offer  such  a  basis  was  Lord  Phillimore's  [the  Root-Phillimore  Plan]. 
He  thought  therefore  that  this  was  the  basis  for  them  to  take,  and 
that  they  should  proceed  to  come  to  an  understanding  on  points  that 
were  not  clear.  Thougli  he  was  a  jurisconsult,  it  did  not  go  against 
his  conscience  to  give  the  Council  a  share  in  the  election  of  judges. 
There  were  however  objections  to  this.     The  Council  was  not  popular 


44 

throughout  the  world;  it  might  be  dangerous  to  give  it  too  much  power. 
However,  states  have  joined  the  League  of  Nations,  although  not  with- 
out some  hesitation,  and  the  best  use  possible  must  be  made  of  its 
various  institutions.  The  establishment  of  the  Permanent  Court  is 
one  of  the  chief  steps  in  this  direction;  to  achieve  this,  he  personally 
was  prepared  to  make  concessions.  The  balance  could  never  be  abso- 
lutely adjusted;  it  must  be  weighted  down  to  one  side  or  the  other. 

Continuing,  Mr.  Hagerup  said  that  it  was  impossible  to  achieve  the 
ideal;  if  compromises  were  not  effected,  the  Committee  would  fail. 
He,  therefore,  called  upon  the  members  to  abandon  some  of  their 
cherished  hopes  and  to  take  for  a  basis  the  Root-Phillimore  Plan,  which 
seemed  to  him  "the  only  possible  solution." 

In  the  interval  between  the  23rd  of  June  and  the  5th  of  July,  the 
discussion  turned  upon  the  question  of  jurisdiction,  in  regular  ses- 
sions, and  questions  of  procedure  in  unofficial  and  unreported  ses- 
sions."* During  this  period  Lord  Phillimore  and  Mr.  Root  cast  in  the 
form  of  articles  their  views  both  as  to  the  appointment  of  judges  and 
the  composition  of  the  court  and  its  jurisdiction,  incorporating  therein 
the  views  of  other  members  of  the  Committee  which  had  found  general 
favor.  This  was  the  so-called  Root-Phillimore  Plan.  It  was  the  basis 
of  discussion  later  and,  with  sundry  additions  and  in  some  cases  omis- 
sions, forms  the  foundation  of  the  articles  of  the  project  dealing  with 
the  composition  and  jurisdiction  of  the  proposed  Permanent  Court  of 
International  Justice. 

On  the  6th  of  July,  according  to  an  agreement  reached  the  day  be- 
fore, the  Committee  proceeded  to  vote  upon  the  different  methods  of 
selecting  the  judges.  The  first  amendment  to  be  voted  upon  was  that 
of  Mr.  Ricci-Busatti,  wlych  was  a  substitute  prepared  that  day  for  the 
methods  of  selecting  the  judges  contained  in  his  projects  of  June  23 
and  June  30.    This  amendment  was  as  follows: 

Each  member  of  the  League  of  Nations,  contracting  parties  to 
the  Convention  of  The  Hague  for  the  pacific  settlement  of  international 
disputes,  shall  have  the  right  to  name  one  judge  chosen  by  its  dele- 
gates at  the  Permanent  Court  of  Arbitration,  either  from  among  its 
nationals  or  from  among  the  nationals  of  a  different  state.  If  these 
delegates  are  not  agreed  in  their  choice  of  a  person,  the  government 
shall  designate  the  person  whom  it  prefers  from  among  those  whose 
names  have  been  proposed. 

As  soon  as  the  judge  shall  cease  for  any  reason  whatsoever  to 
be  a  member  of  the  court,  the  state  by  which  he  was  named  shall  pro- 


-*  In  the  latter,  the  undersigned,  at  Mr.  Root's  request,  took  his  plaee. 


45 

ceed  to  a  new  appointment  in  accordance  with  tiie  preceding  para- 
graph.    .     .     . 

The  court  shall  meet  in  full  session  every  two  years,  and  shall  be 
divided  into  five  sections.  Each  section  shall  be  composed  of  a  presi- 
dent and  a  number  of  judges  and  deputy  judges  to  be  determined  ac- 
cording to  circumstances,  by  the  court  itself,  the  individual  ability  and 
nationality  of  each  judge  being  taken  into  consideration.  No  judge 
may  belong  to  more  than  two  sections. 

The  presidents  of  the  five  sections  are  elected  by  the  court  by 
absolute  majority.  If  this  majority  is  not  obtained  on  the  first  ballot, 
a  simple  majority  shall  decide.  In  case  of  a  tie  the  senior  shall  be  con- 
sidered as  elected.  Their  college  shall  form  the  "Presidencv  of  the 
Court." 

Mr.  Ricci-Busatti  admitted  that  his  amendment  constituted  a  new 
plan  which  differed  considerably  from  his  first,  and  that  the  new  pro- 
posal resembled  the  plan  submitted  by  the  Italian  delegation  to  the 
Paris  Peace  Conference.  His  fundamental  idea  was  to  join  the  pro- 
posed court  to  the  Court  of  Arbitration  and  to  insure  its  independence 
by  excluding  political  influence.  He  felt  that  political  bodies  like  the 
Council  and  the  Assembly  would  always  vote  by  countries  and  would 
not  consider  persons  with  whose  merits  the  members  would  not  be  well 
acquainted,  so  that  the  result  would  be  that  the  judges  appointed  by 
these  bodies  would  never  be  independent,  and  that  they  would  always 
consider  themselves  as  representatives  of  states.  Under  these  circum- 
stances, he  had  proposed  a  court  of  some  forty-five  to  fifty  members  ap- 
pointed by  the  various  states,  which  would  be  divided  into  five  to  seven 
sections.  The  presidents  of  these  sections,  elected  at  a  full  meeting  of 
the  court,  would  form  a  presidential  body  which  would  be,  in  his 
opinion,  the  nucleus  of  a  court,  the  election  to  be  carried  out  by 
men  who  knew  each  country  and  would  be  more  likely  to  insure  the 
election  of  desirable  persons.-^  In  reply  to  a  request  from  Baron  Des- 
camps  for  further  information  as  to  the  working  of  this  plan,  Mr.  Ricci- 
Busatti  stated  that  his  amendments  were  based  upon  the  ancient  Rota 
Romana,  a  body  which  was  permanent  in  the  sense  that  judges  com- 
posing it  sat  in  rotation.  With  this  institution  in  mind,  he  conceived 
the  idea  of  forming  a  college  divided  into  sections  with  a  permanent 
presidential  body.  Tliese  different  sections  could  be  composed  in  such 
a  w^ay  as  to  be  especially  competent  to  deal  with  certain  classes  of 
cases,  as  a  judge  could  not  be  expected  to  be  equally  competent  to  deal 
with  all  classes  of  cases.  The  parties  in  controversy  should  have,  in  his 
opinion,  the  right  to  choose  the  section  wliicli  would  deal  with  these 


"  Proces-verhal  for  session  of  July  Oth. 


46 

cases.^**  In  reply  to  three  questions  put  by  Mr.  de  Lapradelle,  which 
went  to  the  heart  of  permanency  of  the  court:  Did  Mr.  Ricci-Busatti 
think  tliat  his  sj'stem  would  insure  the  permanence  of  the  court?  Did 
he  think  that  it  would  insure  the  unification  of  jurisprudence?  Did  he 
think  that  the  system  would  give  the  nations  a  court  such  as  public 
opinion  expected? — Mr.  Ricci-Busatti  answered  that  the  permanence 
of  his  court  was  assured  b}'  the  permanent  nucleus  of  the  presidential 
body,  that  the  unification  of  jurisprudence  would  be  insured  by  his 
system  just  as  effectively  as  by  any  other,  and  that  a  court  constituted 
in  accordance  with  his  ideas  would  fulfil  the  wishes  and  expectations 
of  nations.  A  court  such  as  he  proposed  would  be  founded  upon  re- 
alities, while  in  some  of  the  other  systems  there  was  an  artificial  ele- 
ment.-^ Mr.  Ricci-Busatti's  proposition,  as  thus  explained  by  himself, 
was  put  to  a  vote  and  was  rejected  by  a  vote  of  six  to  two,  with  one 
abstention:  Messrs.  Adatci,  Altamira,  de  Lapradelle,  Loder,  Lord  Philli- 
more  and  Mr.  Root  against;  Baron  Descamps  and  Mr.  Ricci-Busatti  for. 
Mr.  Hagerup  did  not  vote,  because,  as  Mr.  Ricci-Busatti's  proposition 
had  only  been  presented  that  morning,  he  had  not  had  time  to  con- 
sider it. 

This  vote  decided  that  the  contemplated  court  was  to  be  a  perma- 
nent body,  and  that  it  was  to  be  a  court  of  justice,  not  of  arbitration. 

The  Committee  next  took  up  Baron  Descamps'  proposition  for 
electing  the  judges  and  constituting  the  court.  Baron  Descamps' 
amendment  to  the  Root-Phillimore  Plan  was  Article  5  of  his  elaborate 
project  laid  before  the  Committee  subsequently  to  the  presentation  of 
the  Root-Phillimore  Plan,  which,  adopting  many  of  its  provisions,! 
rejecting  others,  proposed  a  radically  different  method  of  appointing 
the  judges.    Article  5  of  this  plan  is  as  follows: 

The  members  of  the  court  are  elected  by  the  Assembly  of 
the  League  of  Nations  from  a  double  list  of  candidates,  one 
presented  by  the  Council  of  the  League,  the  other  by  a  college 
of  delegates  of  the  Permanent  Court  of  Arbitration  under  the 
following  conditions: 

Three  months  before  the  date  of  the  election,  the  Secretary 
General  of  the  League  of  Nations  shall  request,  in  writing,  the 
group  of  delegates  appointed  to  the  Permanent  Court  of  Arbi- 
tration by  each  state  to  name  one  of  its  members. 

The  first  duty  of  this  person  is  to  consult  the  highest  courts 
of  justice,  the  university  of  law  faculties,  the  academies  or 
branches  of  academies  devoted  to  the  study  of  law,  as  well  as 


Proccs-vcrhal  for  session  of  July  f)th. 
Ibid. 


47 

other  great  institutions  in  the  juridical  world  ol  recognized 
merit,  and  to  receive  the  names  oi  persons  combining  the  (juaii- 
ties  necessary  to  act  as  a  member  ol  the  court  and  tree  to  take 
up  an  appointment. 

The  College  ol  members  thus  chosen  from  the  Permanent 
Court  ol"  Arbitration  shall  be  convened  at  The  Hague  two  months 
before  the  date  of  the  elections,  by  the  Secretary  General  and 
shall  proceed  to  the  discussion  of  the  candidates  submitted  by 
its  members,  and  to  the  preparation  of  a  list  of  candidates  double 
the  number  of  the  vacancies  to  be  filled.  This  list  shall  be  pre- 
pared in  such  a  way  that  the  judges  and  deputy  judges  shall  be 
drawn  from  various  states  and  that  the  great  forms  of  civilization 
and  the  principal  systems  of  jurisprudence  in  the  world  be  repre- 
sented as  far  as  possible. 

The  members  of  the  College,  prevented  from  taking  part  in 
the  meeting  may  each  send  two  names  together  with  the  reasons 
for  their  recommendations. 

The  College  shall  determine  rules  governing  the  method  in 
which  it  will  exercise  its  powers,  following  the  conditions  here 
laid  down. 

The  list  of  candidates  drawn  up  by  the  College  shall  be 
communicated  without  delay  through  the  Secretary  General  to 
the  Council  of  the  League  of  Nations,  and  this  body,  after  taking 
steps  to  gather  all  necessary  information,  such  as  the  consulta- 
tion of  great  institutions  of  international  jurisprudence,  shall 
proceed  in  accordance  with  the  procedure  adopted  by  it  to  pre- 
pare a  list  of  candidates  twice  the  number  of  the  appointments 
to  be  filled. 

The  Assembly  of  the  League  of  Nations  shall  proceed  in  its 
turn  to  elect  the  judges  from  the  double  list  submitted  to  it,  and 
to  elect  the  deputy  judges  in  conformity  to  such  rules  as  it  shall 
itself  adopt,  under  such  conditions  that  each  state  described  as 
principal  Power  in  the  Covenant  of  the  League  of  Nations  shall 
have  a  titular  judge  in  the  court  as  representing  one  of  the  prin- 
cipal juridical  systems  of  the  w^orld. 

The  last  clause  of  Article  5  had  been  added  that  very  morning,  in 
order  to  quiet  the  apprehensions  of  the  great  Powers  by  assuring  to 
them  permanent  representation  in  the  court,  not  on  the  ground  of  their 
largeness,  but  on  the  ground  of  their  systems  of  law.  Baron  Descamps 
had  insisted  consistently  from  the  opening  of  the  conference  that  the 
adoption  of  his  principle  would  insure  the  larger  states  permanent  repre- 
sentation, whereas  the  method  of  election  did  not  so  assure  them.  How- 
ever, the  large  Powers  did  not  insist  upon  an  absolute  guarantee.  In 
reply  to  a  direct  question  put  by  Baron  Descamps  as  to  whether  the 
election  by  the  Council  and  the  Assembly  was  an  absolute  guarantee. 
Lord  Phillimore  frankly  admitted  that  it  was  not  a  positive  guarantee. 


48 

but  finely  said  that  it  was  "a  reasonable"  guarantee.  Put  to  the  vote. 
Baron  Descamps'  proposition  was  rejected  five  to  three,  witli  one 
abstention:  Messrs.  Adatci,  de  Lapradelle,  Loder,  Lord  Phillimore  and 
Mr.  Root  against;  Mr.  Altamira,  Baron  Descamps,  Mr.  Ricci-Busatti 
voting  for;  Mr.  Hagerup  not  voting. 

This  vote  meant  that  if  either  of  the  two  agencies  of  the  League  of 
Nations  was  to  be  resorted  to  in  electing  the  judges,  both  agencies, 
that  is  to  say,  the  Council  and  the  Assembly,  w  ere  to  be  utilized  upon  a 
footing  of  absolute  equality. 

The  projects  of  Mr.  Ricci-Busatti  and  Baron  Descamps  in  so  far 
as  the  election  of  judges  was  concerned,  having  been  rejected,  the  Root- 
Phillimore  Plan,  to  which  there  were  amendments,  was  now  before  the 
Committee  to  be  accepted  or  rejected  as  an  original  proposition.  This 
proposition  was  that  the  judges  should  be  elected  by  the  Assembly  and 
the  Council  of  the  League  of  Nations,  that  each  of  those  bodies  should 
vote  separately  and  that  the  votes  of  a  majority  of  the  members  present 
and  voting  in  each  body  should  be  necessary  to  an  election.  Mr.  de 
Lapradelle  suggested  before  the  vote  that  the  clause  in  question  should 
be  divided  so  that  the  vote  should  be  upon  the  principle  and  not  upon 
the  detail  This  was  agreed  to,  and  upon  the  question  that  the  judges 
should  be  elected  by  the  Assembly  and  the  Council  of  the  League  of 
Nations  the  vote  stood  eight  to  one:  Messrs.  Adatci,  Altamira, 
Hagerup,  de  Lapradelle,  Loder,  Lord  Phillimore,  Ricci-Busatti  and 
Root  voting  for;  Baron  Descamps  against. 

This  vote  meant  that  the  Advisory  Committee  would  ultimately 
recommend  a  method  of  electing  the  judges  by  the  joint  and  equal 
action  of  the  two  organs  of  the  League  of  Nations  which  were  to  pass 
upon  the  project. 

In  the  course  of  one  of  Mr.  Root's  addresses,  he  used  the  old  English 
adage:  "Leg  over  leg  the  dog  went  to  Dover."  It  not  only  reached 
Dover,  but,  as  will  be  seen,  crossed  the  channel  to  The  Hague. 


m  MARJ92I 


PROJECT  FOR  A  PERMANENT  COURT  OF   INTERNATIONAL 

JUSTICE 

Aiaicii.u;  1  (Preamble) 

A  Permanent  Court  of  International  Justice,  to  whicli  parties 
shall  have  direct  access,  is  hereby  established,  in  accordance 
with  Article  14  of  the  Covenant  of  the  League  of  Nations.  This 
court  shall  be  in  addition  to  the  Court  of  Arbitration  organized 
by  the  Hague  Conventions  of  1899  and  1907,  and  to  the  special 
tribunals  of  arbitration  to  which  states  are  always  at  liberty  to 
submit  their  disputes  for  settlement. 

The  lirst  article  of  the  project  which  is  in  the  nature  of  a  preamble, 
indicates  the  progress  which  has  already  been  made  in  the  pacific  set- 
tlement of  international  disputes  by  means  of  arbitration,  and  that 
arbitration  is  to  be  supplemented,  not  to  be  replaced  by  judicial  settle- 
ment. It  further  indicates  that  agencies  to  facilitate  the  recourse  to 
arbitration,  whether  they  be  special  tribunals  or  tribunals  of  the  Hague 
Court  of  Arbitration  are  to  continue  to  operate  in  the  future  as  in  the 
past,  if  it  be  the  desire  of  states  to  use  them. 

The  field  of  peaceful  settlement  is  to  be  enlarged,  or  rather  a  new 
agency  is  to  be  created  in  this  field,  to  the  end  that  disputes  which  par- 
ties may  wish  to  have  settled  by  due  process  of  law,  that  is  to  say,  by 
the  application  of  the  principles  of  justice  which  we  call  rules  of  law, 
may  be  submitted  to  a  court  of  justice,  instead  of  a  special  or  temporary 
tribunal  of  arbitration,  to  have  them  settled  "on  the  basis  of  respect 
for  law."^ 

To  the  new  institution  the  contending  parties  are  to  have  direct 
access.  It  must,  therefore,  be  permanent,  not  constituted  for  the  case, 
as  is  a  special  tribunal  of  arbitration  or  the  temporary  tribunal  of  the 
Hague  Court  of  Arbitration.  The  judges  are  therefore  to  be  appointed 
in  advance  of  the  case,  not  chosen  by  the  parties  to  the  dispute  after  it 
has  arisen,  as  is  the  wont  of  arbitration. 

There  are  thus  three  agencies  recognized  by  Article  1,  to  which 
states  are  at  liberty  to  submit  their  disputes  for  settlement,  and  each 
agency  is  a  step  in  advance,  culminating  in  a  Permanent  Court  of  Inter- 
national Justice. 


^Pacific  Scttlfmcnt  Convention  of  1800.  Article  1.^. 


50 

CHAPTER  I 

Organization  of  the  Court 

Article  2 

The  Permanent  Court  of  International  Justice  shall  be  com- 
posed of  a  body  of  independent  judges  elected,  regardless  of 
their  nationalit}-,  from  amongst  persons  of  high  moral  character, 
who  possess  the  qualifications  required,  in  their  respective 
countries,  for  appointment  to  the  highest  judicial  offices,  or  are 
jurisconsults  of  recognized  competence  in  international  law. 

Having  decided  in  Article  1  to  establish  a  Permanent  Court  of 
International  Justice,  Article  2  passes  to  a  consideration  of  the  quali- 
fications which  the  judges  of  the  proposed  court  should  possess.  No 
question  could  be  more  important;  none  was  discussed  at  gi-eater 
length  by  the  Committee,  and  upon  none  was  there  a  more  com- 
plete unanimity.  The  goal  was  clear  and  within  the  view  of  every 
member;  but  the  means  of  attaining  it  disclosed  much  difference  of 
opinion.  It  is  of  the  essence  of  a  court  that  its  judges  be  independent, 
and  justice  cannot  be  expected  unless  they  are  so  in  fact  as  well  as  in 
theory.  The  Committee  contented  itself  in  this  connection  with  a  state- 
ment of  principle,  reserving  for  Article  16  the  means  to  secure  and  pre- 
serse  independence  from  governmental  interference  or  influence.  As 
a  means  to  this  end,  the  judges  are  by  Article  2  to  be  elected  "regardless 
of  their  nationality."  This  can  not  be  understood  in  the  sense  that 
nationality  is  not  to  be  considered,  inasmuch  as  Article  10  provides 
that  not  more  than  one  judge  can  be  elected  from  one  and  the  same 
nation.  It  means  that  no  person  is  to  be  chosen  because  he  is  a  citizen 
or  subject  of  some  preferred  countr}'.  It  is  to  be  expected  that  a  dis- 
tinguished French  jurist  or  publicist  will  be  appointed,  but  neither 
France  nor  any  other  Power  has  or  is  to  have  of  right  a  judge  to  sit  in 
the  court.  Nationality  is,  however,  admitted  under  certain  conditions 
and  limitations.  For  example,  it  is  specifically  provided  in  Article  28  that 
in  case  one  of  the  parties  in  controversy  has  a  judge  upon  the  bench, 
the  other  litigating  party  may  appoint  a  judge  to  take  part  in  the  trial 
and  disposition  of  the  case  to  which  it  is  a  party;  and  in  like  manner  if 
neither  of  the  litigating  parties  is  represented  upon  the  bench,  each 
shall  have  the  right  to  appoint  a  judge  during  the  trial  and  disposition 
of  the  case.  This  provision,  however,  is  not  inconsistent  with  the 
general  proposition  laid  down  in  the  present  article  that  the  judges  are 
to  be  elected  regardless  of  nationality,  as  each  litigating  party  must  be 


51 

treated  alike,  and  the  choice  of  a  judge,  even  regardless  of  nation- 
ality, must  not  in  the  mind  of  the  litigating  party,  or  in  the  view  of  the 
world  at  large,  seem  to  inure  to  the  advantage  of  the  state  represented 
on  the  court  and  to  the  disadvantage  of  the  state  not  so  represented. 

Mr.  Altamira  repeatedly  expressed  the  view  in  the  proceedings  of 
the  Committee,  that  the  success  of  the  court  would  depend  upon  the 
quality  of  its  judges,  and  that  moral  qualities  had  more  importance 
than  scientific  ahility.  The  selection  of  the  judges  hest  qualified  would, 
he  believed,  eliminate  the  question  of  great  and  small  Powers,  because, 
as  he  said,  "great  Powers,  as  they  have  a  more  developed  civilization, 
will  also  naturally  have  a  larger  minority  of  intellectual  men  amongst 
their  population,"  From  this  he  drew  the  conclusion  they  would  al- 
ways be  sufficiently  represented  on  the  court  "if  the  principle  of  choos- 
ing the  best  men  is  maintained,"  and  that  he,  himself,  was  prepared  to 
accept  any  scheme  concerning  the  election  of  judges  taking  as  its  basis 
the  necessity  of  choosing  the  best  regardless  of  their  nationality. 

That  the  judges  should  be  persons  of  high  moral  character  only 
needs  to  be  stated. 

Hitherto,  Article  2  deals  with  what  may  be  considered  as  general 
qualifications:  the  judges  are  to  be  independent,  they  are  not  to  belong 
to  any  particular  nationality  and  they  are  to  be  persons  of  high  moral 
character. 

The  balance  of  the  article  deals  with  what  may  be  called  particular 
qualifications,  and  it  will  be  observed  that  they  arc  stated  in  the  alter- 
native; that  the  judges  shall  either  be  eligible  for  appointment  to  the 
highest  judicial  offices,  or  that  they  shall  be  jurisconsults  of  recognized 
ability  in  international  law.  These  qualifications  gave  rise  to  no  little 
difference  of  opinion,  and  were  the  subject  of  much  discussion. 

The  English-speaking  members  insisted  upon  mentioning  specifi- 
cally that  persons  occupying  high  judicial  offices  should  be  eligible  for 
appointment,  and  they  did  not  look  with  favor  upon  the  appointment 
of  persons  versed  onty  in  international  law.  In  the  session  of  June  18, 
1020,  Lord  Phillimore  said:  "Good  judges  are  required — not  merely 
jurisconsults,  A  great  jurisconsult  is  not  necessarily  a  good  judge.  A 
judge  must  possess  the  qualities  of  loyalty,  high  moral  character,  open- 
mindedness,  courage  and  patience,"  And  Lord  Phillimore  believed 
that  persons  possessing  these  qualifications  could  only  be  found  among 
persons  trained  in  law,  seasoned  by  experience  at  the  bar,  and,  if  pos- 
sible, by  experience  upon  the  bench  in  their  respective  countries. 

On  the  other  hand,  various  members  from  the  Continent,  particu- 
larly the  French  member,  objected  to  the  mention  of  this  class  of  per- 


52 

sons,  inasmuch  as  anybody  having  taken  his  law  degree  in  his  country 
was  eligible  to  the  highest  judicial  positions,  without  any  training  in  in- 
ternational law,  with  which  system  the  judges  of  the  proposed  court 
should  be  familiar.  Naturally,  he  was  in  favor  of  jurisconsults  familiar 
with  international  law,  although  generally  such  persons  would  not 
have  occupied  judicial  positions  in  their  respective  countries.  The 
result  was  that  these  alternative  provisions,  based  upon  Article  2  of 
the  Draft  Convention  of  1907  for  the  Court  of  Arbitral  Justice,  were 
adopted  with  the  strengthening  of  the  first  in  form  if  not  in  substance, 
by  requiring  that  the  persons  appointed  should  meet  the  conditions  for 
appointment  to  the  highest  judicial  offices. 

Article  3 

The  court  shall  consist  of  15  members:  11  judges  and  4 
def)uty  judges.  The  number  of  judges  and  deputy  judges  may 
be  hereafter  increased  by  the  Assembly,  upon  the  proposal  of 
the  Council  of  the  League  of  Nations,  to  a  total  of  15  judges  and 
6  deputy  judges. 

It  can  not  be  truthfully  said  that  the  court  should  consist  of  any 
given  number  of  judges,  but  there  are  certain  considerations  which 
tend  to  determine  the  number  within  narrow  limits.  The  Permanent 
Court  of  Arbitration  of  1899  permits  each  nation  to  appoint  not  more 
than  four  persons.  Supposing  that  there  are  50  nations  forming  the 
Society  of  Nations  and  parties  to  the  Pacific  Settlement  Convention 
creating  the  Court  of  Arbitration;  and,  supposing  further,  that  each 
nation  exercises  its  right  of  appointment  to  that  court,  we  have  a  body  of 
200  members.  This  may  be  a  judicial  assembly;  it  is  not  a  court.  Should 
each  state  curb  its  appetite  for  judges  and  restrict  itself  to  one,  we  would 
have  50,  a  body  approximating  a  judicial  assembly  rather  than  a  court. 
On  the  other  hand  it  must  not  be  forgotten  that  we  are  dealing  with 
nations,  and  that  we  are  asking  each  nation  to  submit  the  legality  of  its 
actions,  in  so  far  as  they  affect  another  nation,  its  citizens  or  subjects, 
to  the  standard  of  law  interpreted  and  applied  by  a  court  of  justice. 
Each  nation  would  feel  more  confidence  in  the  court  if  one  of  its 
upright  and  trained  jurists  sat  in  that  tribunal  during  the  trial  and 
consideration  of  its  case.  This  can  fortunately  be  accomplished  with- 
out having  the  court  always  composed  of  a  judge  from  each  country,  by 
the  simple  device  of  allowing  each  nation,  should  it  so  desire,  to  ap- 
point a  person  possessing  all  the  qualifications  of  a  judge  to  sit  upon 
the  bencli  during  the  consideration  and  trial  of  the  case  in  which  it 
is  interested,  provided  that  there  is  not  a  judge  of  its  nationality  in 


53 

the  court  as  composed  in  the  first  instance.  This  enables  the  number 
to  be  reduced  below  50,  without  withdrawing  from  the  court  the  con- 
fidence of  each  nation  in  it  at  the  very  moment  in  which  that  confi- 
dence is  most  essential. 

The  court,  however  composed,  should  be  large  enough  so  that  the 
judges  belonging  to  nations  in  litigation  may  be  able  to  enlighten  the 
other  judges  as  to  tlie  law  involved,  whether  it  be  national  or  inter- 
national, but  not  to  exercise  a  determining  influence  upon  the  judgment 
of  the  court,  as  might  be  the  case  if  the  number  of  judges  were  very 
small.  Again,  the  number  of  judges  need  not  be  so  small  as  in  the  case 
of  a  national  court.  The  international  tribunal,  while  it  deals  with  in- 
ternational law,  must  or  should  be  familiar  with  the  typical  systems  of 
law  existing  in  the  world  at  large,  inasmuch  as  every  case,  although  it 
is  to  be  decided  by  principles  of  international  law,  nevertheless  has  had 
its  origin  in  a  national  act,  which  may  or  may  not  be  in  accord  with  the 
laws  of  that  particular  state.  The  larger  the  number  of  judges  familiar 
with  national  systems,  the  more  fitted  the  court  for  the  performance  of 
its  duties.  The  number  becomes  therefore  material,  differing  in  this 
respect  from  a  national  court,  each  judge  of  which  has  had  approxi- 
mately the  same  training  in  the  same  sj-^stem  of  law  and  possesses  ap- 
proximately the  same  qualifications.  A  tribunal  of  arbitration  ordi- 
narily consists  of  five  members,  of  which  two  are  generally  citizens  or 
subjects  of  the  parties  in  controversy.  The  indiff'erent  members  are 
indeed  in  a  majority,  but  the  majority  is  too  small.  On  the  other  hand, 
a  court  of  more  than  fifteen  judges  is  considered  by  many  competent 
persons  to  be  unwield}^ 

The  Advisory  Committee  endeavored  to  strike  a  balance  on  the 
understanding  that  the  number  of  judges  might  be  increased  from  time 
to  time  as  some  states  not  now  members  of  the  League  of  Nations  and 
others  not  yet  fully  recognized  as  states,  should  be  included.  The 
countries  in  the  minds  of  the  Committee  were  chiefly  Germany,  Russia 
and  the  United  States.  The  Advisory  Committee,  therefore,  recom- 
mended that  the  court  begin  with  eleven  judges  and  four  deputy  judges, 
and  that  this  number  may  be  increased  to  a  total  of  fifteen  judges  and 
six  deputy  judges.  The  French  text  is  in  this  regard  more  specific  than 
the  English  version,  inasmuch  as  the  word  "titular"  is  used  in  that 
language  to  designate  the  regular,  actual  or  sitting  judge,  and  the  word 
"supplemental"  or  supplementary,  for  the  occasional  judge.  Deputy 
or  supplemental^^,'  judges  do  not  exist  in  the  Anglo-American  system. 
They  do  in  other  systems,  and  fill  a  temporary  or  permanent  vacancy 
in  the  court  according  to  the  provisions  of  law  of  flic  different  nations 


54 

having  such  a  system.  It  may  be  said  in  tliis  connection,  although  it 
will  be  dwelt  upon  later,  that  the  qualifications  of  titular  and  deputy 
judges  are  to  be  the  same,  and  that  the  order  in  which  the  deputy  judges 
shall  be  called  upon  to  act  as  judges  of  the  court  is  determined  by  the 
court  itself  according  to  the  provisions  of  Article  15  of  the  project. 

It  will  be  observed  that  the  number  of  judges  is  to  be  increased  by 
the  Assembly  upon  the  proposal  of  the  Council  of  the  League  of  Nations. 
The  project  in  all  its  parts  rests  upon  the  cooperation  of  the  Assembly 
and  the  Council,  the  initiative  ordinarily  being  taken  by  the  Council, 
which  is  a  smaller  and  may  be  said  to  be  an  executive  body,  meeting 
frequently,  if  not  at  regular  intervals;  whereas  the  Assembly  represents 
the  members  of  the  League  upon  a  footing  of  equality,  each  member 
having  a  right  to  one  vote,  although  it  may  have  as  many  as  three  rep- 
resentatives. This  body  represents  all  nations  which  are  meinbers  of 
the  League,  not  a  limited  number  of  them,  and  therefore  can  speak  and 
act  in  behalf  of  all. 

Article  4 

The  members  of  the  court  shall  be  elected  by  the  Assembly 
and  the  Council  from  a  list  of  persons  nominated  by  the  national 
groups  in  the  Court  of  Arbitration,  in  accordance  with  the  fol- 
lowing provisions. 

The  term  "members  of  the  court,"  used  in  the  project,  means  titular 
as  well  as  deputy  judges,  both  of  whom  are  to  be  elected  by  the  Assem- 
bly and  the  Council  sitting  as  equal,  independent  and  separate  bodies. 
In  theory,  the  Council  represents  the  League.  In  fact,  unless  human 
nature  has  changed,  the  Council  represents  primarily  the  nations  seated 
at  the  council  table.  This,  indeed,  was  the  reason  for  the  separate 
action  of  each  body.  The  Assembly,  composed  of  representatives  of 
all  the  states,  represents  the  general  as  distinct  from  special  interests. 
The  Council,  of  which  a  majority  is  composed  of  the  so-called  great 
Powers,  is  expected  to  be  mindful  of  the  interests  of  its  majority.  These 
interests  have  been  supposed  to  be  opposed  in  the  past.  It  was  admitted 
that  the  general  and  special  interest  should  be  considered,  but  that 
neither  should  prevail;  that  the  Assembly,  composed  of  an  overwhelm- 
ing majority  of  small  states,  would  veto  an  improper  exercise  of  power 
on  the  part  of  the  Council;  that  the  Council  would  veto  an  improper 
exercise  of  power  on  the  part  of  the  Assembly,  so  that  by  the  separate, 
independent  and  concurrent  action  of  each  body,  a  compromise  would 
be  reached  after  consideration  of  the  divergent  points  of  view  of  the 
great  and  the  small  Powers,  if  their  points  of  view  should  be  found  to  be 


55 

opposed  in  the  election  of  persons  possessing  the  necessary  qualifications 
lor  judges  of  the  proposed  court. 

While,  however,  the  Assembly  and  the  Council  are  to  elect  the  mem- 
bers of  the  court,  as  it  is  only  from  the  source  of  political  power  that 
judges  obtain  the  right  to  decide,  it  does  not  follow  that  governments 
should  in  first  instance  select  as  well  as  elect  the  members  of  the  court. 
There  is  reason  to  believe  that  a  nation  would  find  it  difficult  to  with- 
draw its  support  from  a  person  whom  it  had  proposed  as  a  judge,  and, 
having  committed  itself,  it  might  be  inclined  to  take  such  action  as  in 
its  judgment  would  be  calculated  to  secure  the  election  of  the  person 
to  whom  it  had  committed  itself.  On  the  contrary,  it  is  believed  that  a 
nation  would  be  prepared  to  consider  a  list  of  eligible  persons  with 
more  openness  of  mind  if  they  had  been  selected  by  a  body  in  whose 
composition  the  nation  had  indeed  participated,  but  which  is  not  a  mere 
committee  or  agency  of  the  state  for  this  sole  purpose. 

It  has  been  mentioned  a  number  of  times  that  each  nation  a  party 
to  the  Pacific  Settlement  Convention  has  the  right  to  appoint  not  more 
than  four  persons  to  be  members  of  the  Permanent  Court  of  Arbitration 
at  The  Hague.  It  is  to  be  presumed  that  the  persons  so  appointed  possess 
their  confidence,  as  they  are  held  up  by  the  appointing  nation  as  persons 
fit  and  qualified  to  decide  disputes  between  nations.  It  is  also  to  be 
presumed  that  the  country  appointing  these  members  w^ould  attach  a 
value  to  their  opinions  as  to  persons  who  could  properly  form  a  per- 
manent court  of  justice  for  the  decision  of  differences  between  states. 
It  miglit  even  be  that  a  government  might  discuss  with  its  members  the 
((uestion  of  fitness  of  one  or  more  persons  for  appointment,  but  the 
recommendation  of  the  members  of  the  Court  of  Arbitration  of  each 
country  would  nevertheless  be  the  recommendation  of  those  members 
as  such. 

It  is  believed  that  the  preparation  of  the  list  of  available  persons  by 
the  national  groups  of  the  Court  of  Arbitration  of  the  various  countries 
taking  part  in  the  election  of  judges  is  a  guarantee  to  the  world  at  large 
of  the  qualifications  of  the  members  proposed;  that  the  rights  of  the 
nations  are  sufiiciently  safeguarded  in  that  the  reconnncndation  pro- 
ceeds from  a  body  of  persons  possessing  the  confidence  of  the  govern- 
ments, and  that,  in  last  instance,  the  governments  themselves,  in  the  full- 
ness of  knowledge  of  the  qualifications  of  the  candidates  and  after 
mature  consideration,  elect  the  persons  to  whom  they  are  willing  to 
entrust  the  decision  of  their  controversies. 


56 

Article  5 

At  least  three  months  before  the  date  of  the  election,  the 
Secretary  General  of  the  League  of  Nations  shall  address  a  writ- 
ten request  to  the  members  of  the  Court  of  Arbitration,  belonging 
to  the  states  mentioned  in  the  Annex  to  the  Covenant  or  to  the 
stales  which  shall  have  joined  the  League  subsequently,  inviting 
them  to  undertake,  by  national  groups,  the  nomination  of  per- 
sons in  a  position  to  accept  the  duties  of  a  member  of  the  court. 

No  group  may  nominate  more  than  two  persons;  the  nomi- 
nees maj^  be  of  any  nationality. 

As  the  national  groups  of  the  Court  of  Arbitration  are  to  select  the 
lists  of  persons  from  whom  the  judges  shall  be  elected,  it  necessarily 
follows  that  they  nmst  be  requested  to  prepare  and  to  present  their 
lists.  The  Secretary  General  of  the  League  is  the  proper  person  to  in- 
form them,  which  he  is  made  to  do  by  Article  5  at  least  three  months 
before  the  date  fixed  for  the  election. 

The  only  states  having  a  right  to  appoint  members  of  the  Permanent 
Court  of  Arbitration  are  those  which  are  parties  to  the  Pacific  Settle- 
ment Convention.  As  a  consequence  of  the  World  War,  states  have 
come  into  being  which  did  not  exist  before  the  war.  None  of  these 
nations  are  parties  to  the  Pacific  Settlement  Convention,  yet  some  of 
them,  such  as  Poland  and  Czecho-slovakia,  are  already  members  of  the 
League,  including  the  enlarged  Serbia  called  the  Kingdom  of  the  Serbs, 
Croats  and  Slovenes.  Before  they  can  comply  with  the  request  of  the 
Secretary  General  of  the  League  of  Nations  to  be  addressed  to  their 
members  of  the  Court  of  Arbitration,  it  will  be  necessary  for  such  states 
to  become  parties  to  the  Pacific  Settlement  Convention,  which  provides 
for  the  adherence  of  Powers  not  represented  in  the  First  Peace  Con- 
ference or  not  invited  to  the  Second  Conference.  Article  60  of  the  Con- 
vention of  1899  provided  that  the  conditions  of  adherence  should  form 
"the  subject  of  a  subsequent  agreement  among  the  contracting  Powers." 
In  1907  the  Powers  accepting  the  invitation  to  participate  in  the  Second 
Conference,  which,  however,  had  not  been  invited  to  the  First,  were 
allowed  by  the  contracting  parties  to  adhere  to  the  convention  upon  the 
sole  condition  of  signing  it.  They  did  that  at  The  Hague,  June  14,  1907, 
the  da}^  before  the  formal  opening  of  the  Second  Conference.  The  like 
procedure  can  be  followed  in  the  present  case.^ 


^  Protocol   regarding  adhesions   to  tlie   1 800   Convention   for  tlie   pacific  settle- 
ment of  international  disputes,  signed  at  The  Hague,  June  14,  1007: 

The  Powers  which  have   ratified  the   Convention   for  the  pacific  settlement  of 
international  disputes,  signed  at  The  Hague  on  July  20,   1800,  desiring  to  enable 


57 

Under  the  Pacific  Settlement  Convention  each  contracting  Power  is 
entitled  to  nominate  not  more  than  four  members  of  the  Permanent 
Court  of  Arbitration.  May  each  national  group  submit  a  list  of  as  many 
persons  for  membership  in  the  Permanent  Court  of  International  Jus- 
tice?   No,  says  Article  5,  which  limits  the  number  to  two. 

There  was  a  wide  divergence  of  views  as  to  the  number  of  persons 
which  each  national  group  might  recommend.  The  most  reasonable 
view,  it  is  believed,  was  that  of  Mr.  Root,  who  proposed  that  each  national 
group  should  select  four  persons,  two  of  whom  should  be  citizens  or 
subjects  of  the  national  group,  and  two  citizens  or  subjects  of  foreign 
countries.  In  this  way,  each  national  group  would  have  been  obliged 
to  express  its  opinion  upon  two  persons  of  foreign  nationality  qualified 
to  act  as  international  judges.  Recommendation  would  have  been  in 
many  cases  tantamount  to  an  election,  inasmuch  as  the  qualified  per- 


the  States  that  were  not  represented  at  the  First  Peace  Conference  and  were  invited 
to  the  Second  to  adhere  to  the  aforesaid  Convention,  the  undersigned  delegates  or 
diplomatic  representatives  of  the  above-mentioned  Powers,  viz :  .  .  .  duly 
authorized  to  that  effect,  have  agreed  that  there  sliall  be  opened  by  the  Minister  of 
Foreign  Affairs  of  the  Netherlands,  a  proces-verbal  of  adhesions,  that  shall  serve 
to  receive  and  record  the  said  adhesions,  which  shall  immediately  go  into  effect. 
In  witness  whereof  the  present  protocol  was  drawn  up,  in  a  single  copy,  which 
shall  remain  in  deposit  in  the  archives  of  the  Ministry  of  Foreign  Aft'airs  of  the 
Netherlands  and  of  which  an  authenticated  copy  shall  be  transmitted  to  each  one 
of  the  signatory  Powers. 

[Martens,  Xouveati  recueil  general  de  traites,  3rd  series,  Vol.  II,  p.  4;  The 
Hankie  Conventions  and  Declarations  of  1899  and  1907,  J.  B.  Scott,  editor  (1918), 
p.  xxxii.] 

Proces-verbal  of  adhesion: 

There  was  signed  in  this  city  on  June  14,  1907,  a  protocol  establishing,  in 
respect  to  the  Powers  unrepresented  at  the  First  Peace  Conference  whicli  have  been 
invited  to  the  Second,  the  mode  of  adhesion  to  the  Convention  for  the  peaceful 
settlement  of  international  disputes,  signed  at  The  Hague,  July  29,  1899, 

Pursuant  to  the  said  protocol,  tlie  undersigned.  Minister  of  Foreign  Affairs  for 
Her  Majesty  the  Queen  of  tlie  Netlierlands,  on  this  day  opened  the  present  proces- 
verbal  intended  to  receive  and  furthermore  to  record,  as  they  may  be  presented,  the 
adhesions  of  the  aforesaid  Convention. 

Done  at  The  Hague,  on  June  15,  1907,  in  a  single  copy,  which  shall  remain 
in  deposit  in  the  archives  of  the  Ministry  of  Foreign  .\ffairs  of  the  Netherlands,  and 
of  which  a  duly  certified  copy  shall  be  transmitted  to  each  of  the  signatory  Powers. 

Van  Tets  van  Goudriaan. 

Snccessivchi  adhered:  Argentine  Republic.  Brazil.  Bolivia.  Chile.  Colombia. 
Cuba,  Guatemala,  Haiti,  Nicaragua.  Panama,  Paraguay.  Peru,  Dominican  Republic. 
Venezuela.  Uruguay,  Salvador  and  Ecuador. 

[Martens,  ibid.,  j).  r. ;  Scott,  ibid.,  pp.  xxxii-xxxiii.] 


58 

sons,  not  too  niiinerous  in  any  event,  would  figure  upon  many  lists,  and 
the  Council  and  the  Assembly  would  necessarily  be  guided  in  elec- 
tion by  the  frequency  with  which  foreigners  ajDpear  upon  national  lists. 
Mr.  Root,  however,  was  willing  that  the  national  group  should  propose 
as  many  persons  as  it  pleased,  leaving  the  Assembly  and  the  Council 
free  to  pick  and  choose  among  them.  Baron  Descamps  was  much  op- 
posed to  a  large  list,  on  the  ground  that  it  would  tend  to  confuse  the 
Assembly  and  the  Council.  Mr.  Hagerup,  on  the  contrary,  strongly 
favored  a  large  list,  to  the  end  that  the  electoral  bodies  should  have 
before  them  a  wealth  of  material  from  which  to  make  their  choice.  He, 
however,  yielded  to  the  arguments  of  his  colleagues  and  agreed  to  limit 
the  number  to  be  presented  by  each  national  group  to  six.  Eventually 
this  was  cut  down  to  two,  against  his  opposition  and  vote. 

It  will  be  observed  that  there  is  no  requirement  of  nationality  in 
the  text  as  ultimately  adopted;  a  national  group  may  recommend  two 
from  its  country  or  it  may  content  itself  with  one,  or,  indeed,  with  none, 
preferring  foreigners  of  eminence.  A  great  deal  of  stress  was  laid  on 
this  latter  possibility,  especially  by  Mr.  de  Lapradelle,  who  felt  that  some 
of  the  smaller  states  might  prefer  to  recommend  foreigners  instead  of 
their  own  nationals.  Time  w  ill  tell.  Each  national  group  is  to  recommend 
two  qualified  persons;  they  are  to  be  persons  of  their  own  choice,  whether 
they  are  or  are  not  citizens  or  subjects  of  their  own  country. 

Article  6 

Before  making  these  nominations,  each  national  group  is 
hereby  recommended  to  consult  its  highest  court  of  justice,  its 
legal  faculties  and  schools  of  law,  and  its  national  academies  and 
national  sections  of  international  academies  devoted  to  the  study 
of  law. 

It  would  seem  that  an  article  requesting  the  national  groups  of  the 
Permanent  Court  of  Arbitration  to  strengthen  their  judgment  by  the 
advice  of  sundry  specified  bodies  of  persons  interested  in  international 
law,  international  organization  or  the  administration  of  justice,  is  un- 
necessary, inasmuch  as  the  members  of  the  national  group  were  desig- 
nated to  nominate  candidates  on  the  express  ground  that  they  were 
peculiarly  competent  to  select  the  right  persons.  If  the  institutions 
mentioned  in  Article  0  ought  to  be  consulted,  it  is  to  be  presumed  that 
the  national  groups  would  do  so,  ex  proprio  motii.  It  did  not  seem 
necessary  to  the  Anglo-American  members  to  impose  this  as  a  condition; 
they  were  not  over-inclined  to  favor  it  as  a  recommendation.  They  were 
unwilling,  however,  to  oppose  a  provision  that  seemed  to  be  of  great 


59 

value  to  some  of  their  colleagues,  especially  Mr.  Altaniira,  of  Spain,  and 
Mr.  de  Lapradelie,  of  France.  In  the  English-speaking  world  these 
bodies  may  be  consulted.  There  is  no  statute  against  it;  but  it  is  done 
covertly,  not  openly,  if  at  all.  In  other  countries,  particularly  upon  the 
continent  of  Europe,  it  appears  to  be  done  openly  and  as  a  matter  of 
course.  Doubtless,  the  practice  justifies  itself,  else  it  would  not  be  con- 
tinued. As  the  article  reads,  there  is  no  obligation  on  the  part  of  any 
national  group  to  comply  with  the  request.  It  may  or  it  may  not;  its 
recommendations  stand  or  fall  upon  their  merits.  The  members  of  the 
national  groups  can  not  divest  themselves  of  their  responsibility,  and 
they  are  likely  to  consult  these  bodies  when  they  believe  it  to  be  useful, 
otherwise,  not.     It  can  do  no  harm;  it  may  do  good. 

Article  7 

The  Secretary  General  of  the  League  of  Nations  shall  prepare 
a  list,  in  alphabetical  order,  of  all  the  persons  thus  nominated. 
These  persons  only  shall  be  eligible  for  appointment,  except  as 
provided  in  Article  12,  paragraph  2. 

The  Secretary  General  shall  submit  this  list  to  the  Assembly 
and  to  the  Council. 

Nothing  could  be  more  natural  than  that  the  national  groups  should 
report  to  the  Secretary  General  their  recommendations,  inasmuch  as  he 
had  set  them  in  motion.  And  nothing  could  be  more  natural  than  that 
the  Secretary  General  should  as  a  matter  of  administration  prepare  a 
list  in  alphabetical  order  of  all  persons  nominated  by  the  national 
groups  and  transmit  it  to  the  Assembly  and  Council. 

It  was  foreseen  that  there  might  be  cases  in  which  it  would  prove 
to  be  desirable,  advisable  or  necessary  to  go  beyond  the  list.  It  was 
intended  that  this  should  be  the  exception.  This  fact  is  adverted  to  in 
the  second  sentence  of  Article  7,  and  the  case  specifically  mentioned  in 
which  this  is  permissible.  On  turning  to  Article  12,  paragraph  2,  it  will 
be  found  that  when  the  Assembly  and  the  Council  have  failed  to  agree 
upon  the  persons  to  be  elected,  the  Committee  of  Mediation  maj'  by  a 
unanimous  vote,  recommend  to  the  Assembly  and  Council  any  person 
whose  name  does  not  appear  in  the  list.  It  is,  however,  a  recommenda- 
tion, not  an  election,  as  the  election  of  judges  is  to  take  place  even  in 
this  instance  by  the  concurrent  action  of  Assembly  and  Council.  The 
exception  is  not  of  the  kind  to  eat  up  the  rule. 

Article  8 

The  Assembly  and  the  Council  shall  proceed  to  elect  by  in- 
dependent votings,  first  the  judges  and  then  the  deputy  judges. 


60 

As  the  method  of  appointing  the  judges  is  the  heart  of  the  project, 
imparting  life  to  its  hody  and  vigor  to  its  members,  it  is  necessary  to  say 
something  of  Article  8,  which  made  the  court,  although  it  seems  so  sim- 
ple, so  natural,  so  inevitable,  given  the  League  of  Nations  and  its  present 
organization. 

The  exchange  of  views  in  the  Advisorj"-  Committee  at  its  first  two 
sessions  on  the  17th  and  18th  of  June,  showed  that  its  members,  while 
living  in  1920 — a  fact  more  than  once  adverted  to  in  the  course  of  their 
labors — were  nevertheless  thinking  in  terms  of  1907  when  the  Court  of 
Ar})itral  Justice  went  to  pieces  on  the  rock  of  inequality.  They  might 
say  that  they  did  not  represent  nations,  that  their  minds  were  open  and 
their  hands  unfettered  by  instructions.^  They  were  in  the  world,  and 
they  were  of  it.  In  this  world  there  are  large  Powers,  there  are  small 
powers,  and  we  get  nowhere  by  denying  that  this  division  should  not 
exist.  Nor  do  we  better  matters  by  suggesting  that  at  bottom,  large  and 
small  have  a  common  interest  in  justice  and  the  application  of  its  rules 
alike  to  gi-eat  and  small.  The  question  which  will  not  down  and  which 
can  not  be  brushed  aside,  is,  how  is  justice  to  be  ascertained,  and  how 
are  its  rules  to  be  administered, — by  the  large,  by  the  small,  by  both? 
Undoubtedly  by  both,  for  great  and  small  exist;  they  must  coexist,  and 
any  method  with  a  chance  of  acceptance  must  recognize  their  existence 
and  their  coexistence,  and  it  must  be  based  upon  the  cooperation  of  both 
upon  terms  which  seem  just  to  all. 

It  is  idle  to  insist  that  the  small  nations  have  nothing  to  fear  from 
the  impartial  administration  of  justice  by  the  great;  it  is  idle  to  insist 
that  the  great  nations  have  nothing  to  fear  from  the  impartial  adminis- 
tration of  justice  by  the  small.  Neither  group  trusts  the  other,  and  cer- 
tainly history  does  not  lead  to  the  conclusion  that  the  large  Powers  are 
the  depository  of  justice.  The  method  must  therefore  seem  not  only 
just,  but  safe  as  well.  It  is  the  old  story  of  the  conflict  between  the  sup- 
posed interests  of  the  big  and  the  little.  In  the  Conference  of  the 
American  States  held  in  Philadelphia  in  1787,  Mr.  Madison,  a  delegate 
from  the  large  state  of  Virginia,  said,  and  truly,  in  the  session  of  June 
19th,  that  "The  great  difficulty  lies  in  the  affair  of  Representation;  and 
if  this  could  be  adjusted,  all  others  would  be  surmountable.    It  was  ad- 


^  The  Advisory  Committee  was  apparently  chosen  with  an  eye  to  nationality. 
Thus,  the  official  organ  of  the  League  says:  "The  Committee  will  therefore  be  com- 
posed of  ten  members,  five  of  whom  are  nationals  of  the  five  Great  Powers  and  five 
nationals  of  smillcr  Powers"  (League  of  Nations,  Ofjicial  Journal,  June,  1920, 
p.  12S). 


mitted,  he  continued,  by  Ijoth  Ihe  gentlemen  from  N.  Jersey  .  .  . 
that  it  would  not  be  just  to  allow  Virg".,  which  was  16  times  as  hu'ge  as 
Delaware  an  equal  vote  only.  Their  language  was  that  it  would  not  be 
safe  for  Delaware  to  allow  Virg".  16  times  as  many  votes."* 

The  difficulty  of  representation  was  found  to  be  surmountable.  The 
metliod  ultimately  adopted  by  that  memorable  conference  made  it  "safe" 
for  big  and  little,  and  both  entered  the  more  perfect  Union  of  the  Ameri- 
can States.  The  large  states,  great  in  extent  of  territory  and  of  popula- 
tion as  are  the  great  Powers  of  to-day,  were  accorded  representation  in 
the  House  of  Representatives  according  to  population;  the  small  states 
were  accorded  equal  representation,  two  members  of  each  state  in  the 
Senate.  Their  interests  were  not  overlooked;  they  were  reconciled  by 
granting  to  each  the  protection  in  the  legislature  of  the  Union  of  States 
which  each  demanded. 

The  American  member  of  the  Advisory  Committee  called  this  ad- 
justment of  interests  to  the  attention  of  his  colleagues  as  a  possible  way 
out  of  the  impasse  of  1907  and  of  1920.  He  pointed  out  that  the  Con- 
ference of  Paris  had  apparently  surmounted  the  difficulties  confronting 
its  members  in  much  the  same  way:  protecting  the  interests  of  the  great 
Powers  by  giving  them  control  of  the  Council,  at  the  expense  of  equality, 
and  protecting  the  interests  of  the  small  Powers  by  granting  each  Power 
one  vote  in  the  Assembly,  in  accordance  with  equality.  Mr.  Root  there- 
fore suggested  that  the  judges  should  be  elected  by  the  concurrent  votes 
of  the  Council  and  Assembly  of  the  League  of  Nations, 

Each  judge  would  therefore  be  elected  by  a  majority  vote  of  each 
body  sitting  separately;  each  would  have  a  veto  upon  the  abuse  of  power 
by  the  other,  and  differences  between  them  would  be  settled  as  they  are 
between  the  Senate  and  House  of  Representatives  of  the  United  States, 
by  "appointment  of  a  Conference  Committee  of  an  equal  number  of 
members  of  each  house,  acting  under  the  pressure  of  public  opinion." 
This  method  seemed  the  counsel  of  despair  to  some  of  the  members  of 
the  Advisory-  Committee,  to  use  Mr.  de  Lapradelle's  phrase,  but  the 
"counsel  of  despair"  of  1787  produced  the  Union  of  the  American  States, 
and  the  "counsel  of  despair"  of  1920  produced  the  agreement  of  1920 
upon  the  constitution  of  a  Permanent  Court  of  International  Justice. 

In  the  closing  words  of  Mr.  Madison's  preface  to  the  Debates  of  the 
Federal  Convention  of  1787,  that  fair-minded  and  far-sighted  man  spoke 
of  the  value  of  the  Debates  as  "the  Historv  of  a  Constitution  on  which 


*  Documetttorif    Ilistori/    of   the    Constitution    of   the    United   States,   Vol.    Ill 
(1900),  pp.  IGO-ini. 


62 

would  be  staked  the  happiness  of  a  young  people  great  even  in  its  in- 
fancy, and,"  venturing  a  prediction,  "possibly  the  cause  of  Liberty 
throught  the  world."^  If  it  be  not  the  cause  of  liberty— as  to  which  it 
becomes  an  American  to  cultivate  understatement — it  appears  far  from 
improbable  that  it  may  be  the  cause  of  justice  throughout  the  world. 
The  only  additional  item  of  importance  in  this  brief  article  to  which 
attention  need  be  called  is  that  the  judges  and  deputy  judges  are  to  be 
separately  elected.  It  had  been  proposed  that  the  persons  highest  on 
the  list  of  those  receiving  the  necessary  number  of  votes  should  be 
elected  in  the  order  of  their  votes,  and  that  the  persons  lower  on  the 
list,  but  receiving  the  requisite  number  of  votes  for  election,  should  be, 
in  the  order  of  their  votes,  the  supplementary  judges.  This  was  ob- 
jected to  for  various  reasons,  the  first  being  that  inferiority  was  created 
between  the  judges  and  deputy  judges,  inasmuch  as  a  deputy  had  not 
received  a  sufficient  number  of  votes  to  be  elected  a  titular  judge.  In 
the  next  place,  it  was  pointed  out  that  deputy  judges  would  in  all  prob- 
ability only  sit  occasionally,  and  that  persons  of  the  very  highest  type 
might  be  willing  to  accept  election  as  deputy  judges  and  to  render  very 
valuable  services  if  they  would  only  be  called  upon  occasionally  to  sit  as 
judges  in  the  proceedings  of  the  court.  Either  reason  would  have  been 
sufficient,  but  both  prevailed,  with  the  result  that  the  titular  judges  of 
the  court  are  first  to  be  elected,  and  then  the  deputy  judges. 

Article  9 

At  every  election,  the  electors  shall  bear  in  mind  that  not 
only  should  all  the  persons  appointed  as  members  of  the  court 
possess  the  qualifications  required,  but  the  whole  body  also  should 
represent  the  main  forms  of  civilization  and  the  principal  legal 
sj'^stems  of  the  world. 

The  requirement  that  the  main  forms  of  civilization  and  the  prin- 
ciple systems  of  jurisprudence  should  be  taken  into  account  in  the  elec- 
tion of  judges  gave  rise  to  more  debate  and  discussion  than  any  other 
question,  except  perhaps  that  of  the  method  of  election  (Article  8)  and 
the  presence  in  the  court  of  a  judge  of  a  litigating  nation  (Article 
28).  This  may  appear  strange,  because  it  does  not  seem  to  be  an 
unacceptable  condition  that  an  international  court  should  within  its 
men)bership  represent  the  main  forms  of  civilization,  for  the  court  itself 
is  the  very  bud  and  blossom  of  civilization;  and  that  the  judges  should 
be  so  chosen  as  to  represent  the  principal  legal  systems  of  the  world. 


^  Documentary    History    of    the    Constitution    of    the    United   States,    Vol.    Ill 
(1900),  Appendix,  p.  70 r,  n. 


63 

for  tliey  are  to  be  lawyers  not  only  of  one  country,  but  of  many  coun- 
tries; and  the  more  familiar  they  are  with  the  legal  and  judicial  sys- 
tems of  other  countries  the  more  likely  they  are  to  understand  a  case 
presented  springing  out  of  one  or  other  national  system  of  jurispru- 
dence. There  must  have  been  reasons  which  do  not  appear  upon  the 
surface,  and  there  were. 

First,  of  the  legal  systems.  This  requirement  figured  for  the  first 
time  in  the  project  laid  before  the  Committee  by  Baron  Descamps,  who 
stated  frankly  and  unreservedly  that  it  was  in  his  opinion  the  best  way 
of  securing  to  the  larger  states  a  permanent  representation  in  the  court 
without  violating  the  principle  of  equality  of  nations,  inasmuch  as,  in 
his  opinion,  each  of  the  leading  nations  could  be  said,  or  for  the  pur- 
poses of  the  election  be  held,  to  have  a  distinct  system  of  jurisprudence. 
This  proposition  was  exceedingly  agreeable  to  Mr.  Adatci  of  Japan, 
whose  country  does  indeed  possess  a  legal  system  and  a  civilization  dif- 
fering from  those  of  European  origin.  The  acceptance  of  this  principle 
would,  therefore,  secure  Japan  a  permanent  representative  in  the  court. 
Lord  Phillimore  was  willing  to  consider  the  common  law  as  a  distinct 
system  and  accept  it  as  a  criterion  if  it  gave  his  country  a  judge.  Mr. 
Root  was  interested,  not  merely  because  it  might  give  the  United  States 
a  judge,  but  because,  as  the  result  of  mature  reflection,  he  had  advocated 
the  consideration  of  this  element  in  his  instructions  to  the  American 
delegation  to  the  Hague  Conference  of  1907,  and,  as  will  be  seen  pres- 
ently, he  was  still  of  the  same  opinion.  Mr.  de  Lapradelle  of  France, 
was,  however,  bitterly  opposed  to  this  provision,  notwithstanding  that 
its  acceptance  would  have  given  his  country  a  judge.  But  although  ad- 
verse to  the  consideration  of  legal  systems  as  such,  he  was  in  favor  of 
securing  representation  of  the  main  forms  of  civilization.  The  truth  is, 
there  is  only  a  superficial  distinction  between  the  two  criteria,  for  law 
is  a  growth,  as  is  civilization,  and  there  is  a  very  distinct  relation  be- 
tween the  civilization  of  a  country-  and  its  system  of  jurisprudence.  The 
legal  systems  of  the  world  would  have  fared  better  in  this  connection 
if  the  purpose  for  which  they  were  invoked  by  Baron  Descamps  had 
not  been  so  obvious;  for  the  smaller  Powers  were  opposed  to  any  method 
which  would  of  right  secure  to  the  large  Powers  a  preferred  position  in 
the  court.  While  the  small  Powers  are  apparentlj"^  willing  to  elect  repre- 
sentatives of  large  Powers,  they  are  unwilling  to  be  forced  to  do  so,  and 
they  balk  at  any  proposal  which  would  outwardly  have  that  eff'ect. 
Again,  Baron  Descamps  apparently  stated  the  principle  in  such  a  way  as 
to  suggest  that  he  had  in  mind  not  merely  systems  of  municipal  law, 
but  of  international  law  of  the  different  countries.     This  was  clcarlv  a 


64 

misconception,  because  no  one  knows  better  than  he,  a  time-honored 
professor  of  the  law  of  nations,  that  there  is  but  one  system  of  inter- 
national law,  and  that  it  is  and  must  be  universal.  When,  however,  the 
method  of  electing  the  judges  by  the  concurrent  action  of  Assembly  and 
Council  had  been  adopted,  there  was  less  reason  to  oppose  the  prin- 
ciple; especially  after  Mr.  Root  had  laid  before  his  colleagues  the  reasons 
of  a  practical  nature  w^hich  had  caused  him  to  propose  that  requirement 
in  the  first  instance.  In  his  instructions  to  the  American  delegation  to 
the  Second  Hague  Peace  Conference,  Mr.  Root  stated  that  the  judges 
should  be  so  selected  from  the  different  countries  that  "the  different 
sj'stems  of  law  and  procedure"  should  "be  fairly  represented."  In  reply 
to  a  request  made  by  Mr.  Altamira  of  Spain,  as  to  the  purpose  of  this 
requirement,  Mr.  Root  stated  that  it  was  "the  practical  discovery  of  the 
extreme  difficulty  which  I  had,  and  which  others  around  me  had,  in 
understanding  the  procedure  and  the  forms  of  expression,  the  manner 
of  thought  of  persons  who  have  lived  in  a  different  system  of  jurispru- 
dence, a  different  phase  or  form  of  expression  of  civilization."  After 
saying  that  it  was  his  duty  to  review  and  pass  judgment  upon  proceed- 
ings had  under  Spanish  law,^'  Mr.  Root  continued : 

I  found  that  it  was  extremely  difficult  for  me  to  understand  w^hat 
they  were  doing,  and  I  had  to  apply  myself  assiduously  to  the  study 
of  their  proceedings,  the  names  of  w^ords  they  used,  the  things  they 
were  doing  in  the  Spanish  courts. 

I  found  that  the  countries  following  the  lead  of  Spain  had  the 
most  admirable  system,  most  admirably  adapted  to  the  habits  and  the 
customs  of  life  that  followed  that  course — wholly  unadapted  to  my 
own  country,  and  that  the  method  of  procedure,  the  forms  of  action 
in  my  ow^n  country,  would  be  wholly  unadapted  to  the  customs  and 
habits  of  the  Spanish  American  people.  All  over  the  world  the  same 
thing  exists.  The  jurisprudence  of  each  country  is  the  growth  of  their 
customs  and  habits,  the  ways  of  doing  business  of  the  people  of  the 
countr}^;  in  every  country  the  procedure  is  the  growth  of  the  life  of 
the  country.  Now^  what  we  want  here  is  a  court  which  will  under- 
stand the  sympathies  of  thought,  the  opinions,  the  prejudices,  fhe 
forms  of  expression,  the  ways  of  acting,  of  all  the  people  of  the  world — 
of  the  civilized  world. 

It  was  not  a  means  of  securing  a  judge  for  one  country  or  another, 
but  it  was  a  means  of  securing  an  understanding  court,  a  court  that  would 
understand  the  case  brought  before  it,  that  underlay  the  instructions 
which  I  gave  to  the  delegates  of  the  Conference  of  1907. 


®  From  a  sentiment  of  delicaey  Mr.  Root  refrained  from  sayinpi;  that  his 'experi- 
ence was  in  conneetion  with  tlie  administration  of  Cuba,  Porto  Rico  and  tlie  Philip- 
pines, all  of  which  had  jireviously  been  Spanisli  colonies. 


65 

Before  such  argument  opposition  could  not  well  raise  its  head.  The 
sensibilities  of  the  previous  opponents  were  satisfied  by  limiting  the 
requirement  to  the  principal  systems  of  law. 

Next  as  to  civilization.  It  would  seem  that  Mr.  Root's  statement 
applied  with  only  less  force  to  this  requirement,  as  in  his  opinion,  con- 
firmed by  the  judgment  of  mankind,  law  and  civilization  go  hand  in 
hand,  and  it  is  impossible  to  explain  one  without  an  understanding  of 
the  other.  It  would  seem  that  the  objections  to  a  consideration  of  the 
forms  of  civilization  would  be  greater  than  to  the  systems  of  jurispru- 
dence, inasmuch  as  every  nation  is  proud  of  what  it  is  pleased  to  call 
its  civilization,  and  there  are  not  cases  wanting  in-  history  in  which  a 
powerful  and  aggressive  country  has  sought  to  impose  its  civilization 
upon  the  world.  On  all  such  occasions  each  nation  has  preferred  to 
stand  by  its  own  civilization,  and  would  be  unwilling  to  confess,  although 
it  might  inwardly  admit,  that  its  civilization  did  not  belong  to  what 
outside  and  disinterested  persons  would  call  "a  main  form."  Mr. 
Hagerup,  who  was  opposed  to  representing  different  systems  of  law, 
was  also  opposed  to  representing  "civilization"  as  such.  But  there  was 
a  considerable  sentiment  in  favor  of  it,  even  among  those  who  had  op- 
posed the  representation  of  legal  systems.  Possibly  Mr.  Root's  reason- 
ing was  convincing;  possibly  the  question  was  not  so  important  when 
it  was^not  to  be  used  as  a  means  for  securing  permanent  representation 
of  the  larger  states;  possibly  the  existence  of  this  requirement  was  due 
in  large  measure  to  the  earnestness  with  which  Mr.  Altamira  advocated 
it.  And,  assuredly,  no  one  could  blame  a  loyal  and  devoted  son  of 
Spain  for  breaking  a  lance  in  behalf  of  the  civilization  of  the  countrA' 
which  has  given  the  language  and  literature,  the  institutions  and  tradi- 
tions to  eighteen  republics  of  the  New  World,  itself  discovered  through 
Spanish  enterprise.  However  that  may  be,  a  court  which  represents 
the  main  forms  of  civilization  and  the  principal  legal  systems  of  the 
world  will  be  an  international  court,  it  will  be  an  understanding  court, 
it  will  be  an  efficient  court. 

Article  10 

Those  candidates  who  obtain  an  alisolute  majority  of  votes 
in  the  Assembly  and  the  Council  shall  be  considered  as  elected. 

In  the  event  of  more  than  one  candidate  of  the  same  nation- 
ality being  elected  by  tlic  votes  of  both  the  Assembly  and  the 
Council,  the  eldest  of  these  only  shall  be  considered  as  elected. 

It  is  necessary  that  the  persons  elected  judges  should  have  the  con- 
fidence of  the  Assembly  and  Council.  This  may  be  expressed  in  various 


66 

ways;  by  an  ordinary  majority,  by  an  absolute  majority,  or  by  a  still 
larger  majority  vote.  A  simple  majority  was  not  acceptable  for  election 
to  the  court  and  indeed  it  was  not  seriously  considered,  as  it  might,  in  the 
case  of  several  candidates,  be  less  than  half.  An  absolute  majority,  that 
is  to  say,  more  than  half  of  the  votes  cast  in  the  Assembly  and  Council, 
met  with  the  approval  of  the  Advisory  Committee.  More  stringent  re- 
quirements had  been  proposed,  such  as  two-thirds  and  three-fourths,  but 
it  seemed  advisable  to  follow  what  is  regarded  as  a  reasonable  require- 
ment in  such  cases.  The  absolute  majority  was  therefore  adopted 
unanimously  and  not  as  a  compromise. 

Some  members  of  the  Committee  were  apparently  of  the  opinion 
that  some  countries  with  an  excess  of  jurists  might  find  themselves 
with  inore  than  one  representative  on  the  international  bench.  There- 
fore in  the  improbable  and,  in  any  event,  rare  case  that  two  persons  of 
one  and  the  same  country  should  receive  an  absolute  majority  of  votes 
in  both  Assembly  and  Council,  Article  10  provides  that  the  elder  is 
alone  to  be  considered  elected.  This  is  in  accordance  with  the  prefer- 
ence of  "young  men  for  action  and  old  men  for  counsel." 

Article  11 

If,  after  the  first  sitting  held  for  the  purpose  of  the  election, 
one  or  more  seats  remain  to  be  filled,  a  second  and,  if  necessary, 
a  third  sitting  shall  take  place. 

It  was  foreseen  that  all  judges  might  not  be  elected  at  the  first  sit- 
ting of  the  electoral  bodies,  even  though  each  judge  should  be  balloted 
for  separately.  Even  if  the  Assembly  should  by  an  absolute  majority 
elect  all  the  judges  to  be  chosen  at  a  single  sitting,  the  Council  might 
not  be  so  fortunate;  and  if  each  should  elect  the  requisite  number  of 
judges  by  an  absolute  majority,  it  might  happen  that  some  person  or 
persons  might  be  elected  by  one  of  these  bodies  and  fail  of  elec- 
tion in  the  other.  Article  11  therefore  wisely  provides  for  a  first,  for 
a  second,  and  for  a  third  sitting  of  each  body  if  necessary  in  order  to 
compose  the  court  in  first  instance,  or  to  fill  such  vacancies  as  should 
exist  from  time  to  time. 

Article  12 

If  after  the  third  sitting  one  or  more  seats  still  remain  un- 
filled, a  joint  Conference  consisting  of  six  members,  three  ap- 
pointed by  the  Assembly  and  three  by  the  Council,  may  be 
formed,  at  any  time,  at  the  request  of  either  the  Assembly  or  the 
Council,  for  the  purpose  of  choosing  one  name  for  each  seat  still 
vacant,  to  submit  to  the  Assembly  and  the  Council  for  their  re- 
spective acceptance: 


67 

If  the  Committee  is  unanimously  agreed  upon  any  person 
who  fulfils  the  required  conditions  he  may  he  included  in  its 
list,  even  though  he  was  not  included  in  the  list  of  nominations 
made  by  the  Court  of  Arbitration. 

If  the  Joint  Conference  is  not  successful  in  procuring  an 
election  those  members  of  the  court  who  have  already  been  ap- 
pointed shall,  within  a  time  limit  to  be  arranged  by  the  Council, 
proceed  to  fill  the  vacant  seats  by  selection  from  amongst  these 
candidates  who  have  obtained  votes  either  in  the  Assembly  or  in 
the  Council. 

In  the  event  of  an  equality  of  votes  amongst  the  judges,  the 
eldest  jud^e  shall  have  a  casting  vote. 

To  an  American,  used  to  appointment  of  conference  committees  by 
the  two  branches  of  the  federal  legislature  in  order  to  agree  upon  dif- 
ferent bills  or  different  provisions  of  one  and  the  same  bill,  the  main 
feature  of  Article  12  does  not  require  explanation  or  comment.  But  the 
members  of  the  Advisory  Committee  were  apparently  not  familiar  with 
this  system,  and  it  was  on  various  occasions  both  in  and  out  of  the  Com- 
mittee, explained  by  Mr.  Root,  its  proposer.  His  explanation,  how^ever, 
did  not  completely  satisfy  his  colleagues,  although  he  stated  that  it  was 
the  constant  practice  of  conference  committees  of  the  House  of  Repre- 
sentatives and  of  the  Senate  of  the  United  States,  on  which  he  had  re- 
peatedly served,  to  agree,  and  that  they  were  forced  to  agreement  by  the 
jiressure  of  public  opinion  which  insisted  that  important  measures 
should  be  passed,  not  defeated  in  one  house  or  the  other  because  of  un- 
important provisions. 

At  first  it  was  thought  that  the  conference  committee  would  itself 
elect,  but  it  was  explained  that  its  duty  w^as  to  report,  not  to  elect,  a  fact 
very  happily  expressed  in  the  phrase  "Committee  of  Mediation,"  which 
was  suggested  by  Baron  Descamps,  and  adopted  by  the  Committee  with 
much  satisfaction. 

Mr.  Root  had  proposed  that  the  Committee  of  Mediation  might  re- 
port persons  to  the  Assembly  and  Council  whose  names  did  not  figure 
in  the  list,  as  it  might  be  that  one  or  the  other  body  was  opposed  to  some 
of  the  prospective  judges.  There  was  very  considerable  objection  to 
this,  as  it  might  enable  the  Assembly  or  Council  to  contravene  the  list 
by  failing  to  elect,  and  then  allow  the  Committee  of  Mediation  to  submit 
names  which  had  not  already  had  the  approval  of  the  national  group 
of  members  of  the  Court  of  Arbitration.  Using  the  language  of  Ameri- 
can political  life,  it  was  suggested  that  this  provision  might  enable  the 
nomination  of  a  "dark  horse."  It  was  said  that  there  might  be  no  ob- 
jection to  "one  such  animal,"  but,  as  Baron  Descamps  wittily  put  it, 


68 

"they  did  not  care  to  have  a  whole  stable  of  dark  horses."  Therefore, 
in  a  spirit  of  compromise,  it  was  agreed,  without  a  dissenting  voice,  that 
the  Connnittee  of  Mediation  might  recommend  any  person  or  persons 
otherwise  meeting  the  qualifications  for  the  office  of  judge,  although 
outside  the  list,  provided  the  Connnittee  was  unanimous  in  the  recom- 
mendation of  such  persons. 

But  it  was  not  certain  that  even  in  this  way  all  the  judges  would  be 
elected  in  first  instance,  or  the  vacancies  filled  that  might  occur.  To 
secure  this  result,  Mr.  de  Lapradelle  made  the  happy  suggestion,  which 
met  with  the  approval  of  the  Committee,  that  in  such  ^  contingencj'^  the 
Council  might  set  a  time  within  which  the  judges  already  elected  should 
fill  the  vacancies.  But  here  again  the  Committee  was  unwilling,  and 
wisely,  that,  the  judges  should  exercise  an  unlimited  discretion.  They 
were  indeed  permitted  to  fill  the  vacancies,  but  only  from  tliose  persons 
who  had  received  votes  either  in  the  Assembly  or  in  the  Council. 

It  is  to  be  observed  that  the  judges  are  not  restricted  to  the  list  pro- 
posed by  the  national  groups  of  the  Permanent  Court  of  Arbitration.  A 
person  recommended  by  the  Committee  of  Mediation  and  for  whom 
votes  had  been  cast  in  either  the  Council  or  the  Assembly  would  seem 
to  be  eligible. 

Finally,  Mr.  Hagerup  suggested  that  the  judges  already  elected 
might  be  an  even,  not  an  odd  number,  and  that  there  might  be  a  tie. 
This  was  obviated  by  the  provision  that  if  such  a  case  should  occur,  the 
eldest  judge  should  have  a  casting  vote,  thus  breaking  the  tie. 

If  human  ingenuity  is  to  be  trusted,  it  would  seem  that  these  pro- 
visions are  bound  to  secure  an  election. 

Article  13 

The  members  of  the  court  shall  be  elected  for  nine  years. 

They  may  be  reelected. 

They  shall  continue  to  discharge  their  duties  until  their 
places  have  been  filled. 

Though  replaced,  they  shall  complete  any  cases  which  they 
may  have  begun. 

A  characteristic  of  arbitration  is  the  appointment  of  arbitrators  or 
judges  by  the  parties  in  controversy  after  the  difference  has  arisen.  A 
characteristic  of  a  court  is  the  appointment  of  judges  in  advance  of  the 
case  and  without  reference  to  any  particular  instance.  A  characteristic 
of  arbitration  is  that  the  tribunal  appointed  for  the  hearing  and  adjust- 
ment of  a  dispute  passes  out  of  existence  with  its  decision.  A  char- 
acteristic of  a  court  is  that,  appointed  in  advance  of  and  without  refer- 


69 

ence  to  a  particular  case,  it  continues  after  its  decision.  In  consequence, 
the  experience  gained  by  the  members  of  an  arbitral  tribunal  in  the  trial 
of  a  case  is  lost  upon  future  cases,  whereas  the  experience  gained  by 
judges  in  one  case  before  a  court  inures  to  the  benlit  of  an  innumerable 
and  endless  series  of  cases.  Arbitral  sentences  are  separate  and  dis- 
tinct pronouncements,  more  or  less  based  upon  respect  for  law;  de- 
cisions of  a  court  are  related  to  what  has  gone  before  and  to  what  fol- 
lows, as  links  in  an  endless  chain,  each  decision  based  not  merely  upon 
respect  for  law  but  upon  law. 

That  the  Society  of  Nations  may  have  the  full  benefit  of  the  estab- 
lishment and  successful  operation  of  an  international  court  of  justice, 
it  is  necessary  that  judges,  good  when  appointed,  may  become  better  by 
experience;  that  constant  association  in  the  administration  of  justice 
shall  develop  an  esprit  de  corps;  that  each  decision,  based  upon  the 
firm  foundation  of  the  past,  may  be  a  guide  to  future  decisions,  and 
that  the  court  may  become  a  beacon  to  the  nations  as  everj^vhere  a 
lamp  in  the  path  of  progress. 

For  this,  time  is  needed,  and  preferably  a  long  period  for  each  of 
the  judges  upon  the  international  bench.  Many  advocates  of  judicial 
settlement  have  proposed  that  the  judges  be  elected  for  life.  The  Court 
of  Arbitral  Justice  proposed  a  term  of  twelve  years;  the  International 
Prize  Court  adopted  six  years;  the  Advisory  Committee  struck  a  balance 
of  nine  years. 

The  rejection  of  a  life  tenure  inevitably  led  to  the  acceptance  of  the 
principle  of  reelection,  in  order  that  faithful  and  efTicient  service  should 
be  rewarded  and  the  court  continue  to  profit  by  the  experience  of  the 
individual  judge  in  the  trial  and  disposition  of  causes.  The  adoption 
of  a  somewhat  long  tenure  of  office  is  advisable  in  the  interest  of  the 
judge,  that  he  may  give  the  full  measure  of  his  capacity,  and  it  is  in  the 
interest  of  the  continuity  of  the  court.  A  term  less  than  life  tenure — 
and  nine  years  is  to  be  considered  as  a  moderate  term — is  advisable,  that 
judges  who  have  failed  to  justify  their  election  should  automatically 
step  from  the  bench.  In  other  words,  a  fixed  term  of  years,  long 
enough  for  the  judge  to  show  his  mettle,  short  enough  to  relieve  the 
bench  of  an  inelficient  member,  settles,  without  raising  mnny  questions. 
One  and  not  the  least  embarrassing  of  these  is  the  removal  from  office, 
which  would  have  to  be  met  in  case  of  a  life  tenure  or  a  long  term  of 
years,  inasmuch  as  the  members  of  the  court  and  the  Societj'  of  Nations 
can  put  u])  for  awhile  with  inefficiencj^  in  one  or  even  more  of  its  mem- 
bers if  the  date  of  retirement  for  one  cause  or  another  is  always  in  view. 

That  a  judge  shall  continue  in  office  until  his  successor  has  been 


70 

elected  and  qualified,  is  common  practice,  based  upon  experience,  and 
that  the  judge,  tliough  replaced,  shall  complete  a  case  which  is  already 
begun,  is  in  the  interest  of  the  litigating  parties.  The  meaning  of  this 
provision  of  Article  13  is  to  be  understood  that  the  case  in  question  shall 
not  merely  be  before  the  court  but  that  its  hearing  shall  have  been 
begun,  and  that  the  judge  shall  already  have  taken  part  in  the  trial 
and  disposition  of  the  case.  His  withdrawal  before  judgment  might  in 
such  a  case  cause  delay  and  prejudice  the  interest  of  the  parties. 

Taken  in  conjunction  with  Article  14,  it  is  evident  that  the  member- 
ship of  the  court  will  need  to  be  renewed  at  the  end  of  nine  years,  inas- 
much as  the  commissions  of  all  members,  titular  or  deputy,  will  expire 
nine  years  from  election.  Were  it  not  for  the  provision  for  reelection, 
the  renewal  of  the  bench  every  nine  years  might  be  detrimental  to  the 
court,  as  even  men  of  ability  require  time  to  familiarize  themselves  with 
new  and  unexpected  duties.  Notwithstanding  the  uncertainties  of  elec- 
tion, it  is,  however,  reasonable  to  presume  that  at  least  a  remnant  of  the 
old  will  be  found  among  the  new  members,  and  that,  in  the  language 
of  everyday  life,  this  little  leaven  will  leaven  the  lump. 

Article  14 

Vacancies  which  may  occur  shall  be  filled  by  the  same  method 
as  that  laid  down  for  the  first  election. 

A  member  of  the  court  elected  to  replace  a  member  the  per- 
iod of  whose  appointment  has  not  expired  will  hold  the  appoint- 
ment for  the  remainder  of  his  predecessor's  term. 

If  the  method  adopted  for  the  election  of  judges  is  a  good  one  and 
secures  good  judges,  there  is  no  reason  opposed  to,  and  every  reason 
in  favor  of  filling  vacancies  by  a  method  which  has  justified  itself. 
Therefore,  if  the  recommendations  of  national  groups  of  the  Permanent 
Court  of  Arbitration  proves  satisfactory,  they  should  be  asked  to  submit 
their  lists  of  available  persons  to  fill  vacancies  in  the  court.  This  is  the 
sense  of  Article  14. 

It  cannot  be  disguised,  however,  that  this  method  of  selection  in- 
volves time,  and  that  when  the  recommendations  of  the  national  groups 
have  been  made,  the  election  depends  upon  the  action  of  two  electoral 
bodies,  which  may  not  meet  at  regular  or  at  short  intervals.  Therefore 
the  vacancy  is  likely  to  continue  for  some  time,  and  the  court  might  be 
short-handed,  were  power  not  vested  in  the  court  by  Article  15  to  call 
deputy  judges  to  the  bench. 

For  what  period  of  time  shall  a  member  be  elected  to  replace 
another?    This  was  a  question  which  perplexed  the  committee  and  was 


71 

only  decided  after  much  discussion  and  with  some  misgiving  on  the 
part  of  some  members.  It  was  eventually  agreed  that  the  new  member 
should  lill  out  the  term  of  his  successor.  The  objection  to  this  was  that 
precedent  is  against  it.  Thus,  Article  44  of  the  Pacific  Settlement  Con- 
vention as  revised  in  1907  provides  that  in  case  of  the  death  or  retire- 
ment of  a  member  of  the  court,  his  place  is  to  be  filled  in  accordance 
with  the  method  of  his  appointment,  that  is  to  say,  for  a  period  of  six 
years.  Article  11  of  the  Prize  Court  Convention  provides,  "should  one 
of  the  judges  or  deputy  judges  die  or  resign,  the  same  procedure  is 
followed  for  filling  the  vacancy  as  was  followed  for  appointing  him.  In 
this  case,  the  appointment  is  made  for  a  fresh  period  of  six  years." 
Article  3  of  the  Draft  Convention  for  the  Court  of  Arbitral  Justice  pro- 
vides that  in  such  cases  the  vacancy  is  filled  in  the  same  manner  as  the 
original  appointment  and  that  "in  this  case,  the  appointment  is  made 
for  a  fresh  period  of  twelve  years."  The  reason  for  the  rule  adopted 
for  tlie  Prize  Court  and  the  Court  of  Arbitral  Justice  was  the  desire  to 
preserve  the  continuity  of  the  court  by  the  presence  of  judges  appointed 
for  the  full  term.  This  method  was  calculated  to  prevent  a  renewal  of 
the  court  every  six  or  twelve  years,  respectively.  The  advocates  of  con- 
tinuity, therefore,  preferred  to  follow  precedent. 

On  the  other  hand,  it  was  felt  that  a  great  and  counterbalancing 
advantage  would  accrue  to  the  court  if  every  nine  years  all  of  the  judges 
should  be  appointed  anew.  Such  a  spectacle  would  impress  public 
opinion,  and  the  existence  and  successful  operation  of  the  court  depend 
largely  upon  public  opinion.  Preparations  could  and  would  be  made 
in  advance  for  this  event,  and  if  there  should  be  an  interval  between  the 
expiration  of  the  term  of  nine  years  and  the  new  appointments,  the 
members  of  the  court  would  hold  until  their  successors  qualified,  thus 
continuing  the  court  "in  being."  Finally,  the  continuity  of  the  court 
would  be  preserv^ed  by  the  continuance  in  ofTice  of  those  judges  who 
have  won  the  confidence  of  the  Society  of  Nations. 

Article  15 

Deputy  judges  shall  be  called  upon  to  sit  in  the  order  laid 
down  in  a  list. 

This  list  shall  be  prepared  by  the  court,  having  regard  first 
to  the  order  in  time  of  each  election  and  secondly  to  age. 

The  deputy  judge  must,  as  previously  stated,  possess  the  qualifica- 
tions of  a  titular  member,  the  chief  difference  being  that  the  titular 
judge  is  to  sit  regularly,  whereas  the  deputy  may  only  act  occasionally 
as  a  judge.    It  is  expected  that  the  deputy  will  in  every  way  be  equal 


72 

to  the  permanent  judge.  Indeed,  he  may  be  superior,  as  it  may  well 
be  that  a  man  of  the  highest  attainments  might  be  willing  to  sacrifice 
a  portion  of  his  time  to  a  great  cause,  whereas  he  might  be  unable 
to  accept  a  post  which  would  inevitably  require  his  presence  at  The 
Hague  for  a  longer  or  shorter  time  of  every  one  of  the  nine  years  of  his 
appointment.  The  deputy  judge  is,  however,  a  member  of  the  court, 
even  though  he  may  be  called  upon  onl}^  irregularly  or  intermittently 
to  participate  in  its  labors.  If  a  military  expression  be  permitted,  the 
titular  judge  is  in  active  service,  the  deputy  judge  is  in  the  reserve.  The 
deputy  judge  began  as  an  outsider;  he  ended  by  being  a  member  of  the 
court,  with  equal  qualifications,  with  equal  rights,  although  perhaps  less 
onerous  duties. 

In  the  early  sessions  of  the  Committee,  the  titular  were  considered 
the  only  judges  of  the  court.  In  the  closing  sessions  the  court  was  con- 
sidered as  composed  of  fifteen  members,  of  whom  eleven  were  titular 
and  four  deputy  judges.  Little  by  little,  it  dawned  upon  the  Committee 
that  it  was  impossible  to  draw  a  distinction  between  the  two  classes 
without  discrediting  members  of  one  class  and  therefore  the  court,  in- 
asmuch as  they  would  be  called  upon  from  time  to  time  to  take  their 
seats  upon  the  bench  with  the  titular  judges  in  the  trial  and  disposition 
of  causes.  If  the  number  of  titular  judges  be  raised  to  fifteen  and  the 
deputies  to  six,  in  accordance  with  the  provisions  of  Article  2,  the  court 
will  consist  of  twenty-one  members. 

When  shall  the  deputy  judges  be  called  into  active  service?  The 
answer  is,  in  case  of  a  vacancy  caused  either  by  the  death  or  inability 
of  a  titular  judge  to  attend  to  his  official  duties.  What  deputy  judge  shall 
be  called?  Who  shall  call  him?  Shall  the  call  depend  upon  conditions? 
These  are  matters  of  very  great  importance.  It  is  of  interest  to  the  deputy 
judges  to  know,  if  possible,  in  what  order  they  may  be  drawn  upon.  It 
is  in  the  interest  of  the  court.  It  may  also  be  in  the  interest  of  the  liti- 
gating parlies.  Therefore,  the  Committee  wisely  provided  that  the 
deputy  judges  should  be  called  in  the  order  laid  down  in  a  list  to  be 
prepared  by  the  court.  But  the  court,  however,  is  not  to  be  a  free  agent 
in  this  important  matter.  Account  is  to  be  taken  of  priorit}'^  of  election, 
and  also  of  age,  inasmuch  as  age  and  experience  usually  go  hand  in 
hand.  This  does  not  mean,  however,  that  deputy  judges  will  sit  accord- 
ing to  priority  of  election  or  according  to  age,  as  they  may  be  unable  at 
the  time  of  the  call  to  respond.  It  means,  however,  that  these  two  ele- 
ments are  to  be  taken  into  account,  not  overlooked. 


73 

Article  16 

The  exercise  of  any  lunction  which  belongs  to  the  poUtical 
direction,  national  or  international,  of  stales,  by  the  members  of 
the  court  during  their  terms  of  oilice  is  declared  incompatible 
with  their  judicial  duties. 

Any  doubt  upon  this  point  is  settled  by  the  decision  of  the 
court. 

The  framers  of  the  project  realized  that  the  success  of  the  court 
would  depend  upon  the  independence  as  well  as  upon  the  character 
and  qualifications  of  its  judges.  Therefore,  in  addition  to  character  and 
professional  attainments,  they  provided  that  the  judges  should  be  in- 
dependent, and  that  they  should  be  elected  regardless  of  their  nation- 
ality. It  is  one  thing  to  say  that  the  judges  shall  be  independent;  it  is 
quite  another  to  have  them  really  so.  It  must  depend  upon  the  judge 
whether  he  will  or  will  not  be  independent,  and  yet  every  precaution 
taken  in  election  to  remove  him  from  the  influence  of  his  government 
is  in  the  interest  of  independence.  The  withdrawal  of  temptation  is 
a  step  toward  salvation. 

But  it  may  happen  that  a  person  possessing  in  a  high  degree  the 
qualifications  for  appointment,  holds  a  position  at  the  time  of  his  elec- 
tion which,  given  human  nature  as  it  is,  is  calculated  to  hamper  or  re- 
strict the  judge  in  the  performance  of  his  judicial  duties  or  to  raise 
doubt  in  the  mind  of  the  public  as  to  his  liberty  of  action.  Within 
national  lines  judicial  have  been  separated  from  political  functions,  as 
a  result  of  long  and  well-nigh  universal  experience.  The  judge  ap- 
pointed by  political  power  has  in  many  instances  been  withdrawn  from 
its  influence  by  life  tenure  and  by  provisions  of  the  law  to  the  effect  that 
his  salar}'  maj'  not  be  decreased  during  his  tenure  of  office;  and  re- 
moval from  oflice,  which  may  be  necessary  betimes,  is  so  hedged  about 
with  limitations  that  any  and  every  judge  is  sure  of  his  position  if  he 
attends  to  his  judicial  duties. 

In  more  than  one  session  the  Committee  discussed  this  question  in 
its  various  bearings  without  reaching  an  agreement.  Upon  the  sugges- 
tion of  the  president,  an  informal  meeting  of  the  members  of  the  Com- 
mittee was  held  on  July  10th,  of  which  no  minutes  were  kept,  with  the 
result  that  the  desired  agreement  was  reached,  in  confinnation  of  Lord 
Macaulay's  dictum  that  "men  are  never  so  likely  to  settle  a  question 
rightly  as  when  they  discuss  it  freely."  This  agreement,  drafted  by  Mr. 
Root,  gave  effect  not  only  to  his  own  views,  but  to  the  views  of  the  Com- 
mittee, as  it  was  adopted  then  and  at  the  ensuing  formal  session  of  the 
same  dav  without  a  voice  of  dissent. 


74 

It  will  be  observed  that  no  attempt  is  made  to  enumerate  the  cases 
of  incompatibility,  as  it  was  supposed,  and  rightly,  that  experience 
might  prove  the  list  to  be  inadequate.  The  incompatibility,  therefore, 
is  stated  by  description,  and  applies  to  the  exercise  of  any  function  by 
members  of  the  court  which  belongs  to,  is  under  or  subject  to  the  politi- 
cal direction,  whether  it  be  national  or  international,  of  states. 

In  the  consideration  of  this  matter  a  difficulty  invariably  presents 
itself  which  must  be  met  and  overcome.  The  judgment  of  the  court  is 
to  be  final.  It  should  not  be  open  to  either  of  the  contending  parties  to 
question  its  validity  on  the  ground  that  one  or  more  of  the  members  of 
the  court  held  an  extrajudicial  position  incompatible  with  the  perform- 
ance of  judicial  duties.  Someuody  must  decide  this  question.  It  is 
judicial  in  its  nature;  therefore  it  should  be  decided  by  the  court,  and 
the  Committee  very  wisely  vested  the  court  with  this  power  and  duty. 
In  first  instance,  however,  the  member  will  pass  upon  the  question 
himself.  He  can  not  hold  both  positions.  Which  will  he  prefer?  If  he 
chooses  the  court,  he  should  resign  the  position  in  conflict  with  his 
judicial  duties.  If  he  prefers  to  retain  his  position,  he  should  refuse  the 
judicial  post.    In  doubtful  cases,  the  court  is  to  decide. 

Inasmuch  as  the  Committee  refrained  from  enumerating  positions, 
it  is  unwise  to  attempt  to  do  so  in  this  connection.  It  is,  however,  proper 
to  remark  that  the  Committee  seemed  to  be  of  the  opinion — if  one  can 
judge  from  the  course  of  discussion — that  membership  in  a  national 
court  of  justice  would  not  be  incompatible;  and  that  membership  in  a 
legislative  body  would  not  be  incompatible.  The  Committee  was  on  the 
other  hand  clearly  of  the  opinion  that  membership  in  the  diplomatic 
service  would  be  incompatible,  and  that  a  Minister  of  Foreign  Affairs 
and  his  assistants  could  not  accept*  the  post  of  judge  and  retain  their 
positions.  Persons  standing  to  the  foreign  office  in  an  advisory  capacity 
would  likewise  be  unable  to  accept  membership  in  the  court  and  retain 
such  positions. 

The  question  is,  however,  to  be  decided  by  the  court  whenever  it 
arises. 

Article  17 

No  member  of  the  court  can  act  as  agent,  counsel  or  advocate 
in  any  case  of  an  international  nature. 

No  member  may  participate  in  the  decision  of  any  case  in 
which  he  has  previously  taken  an  active  part,  as  agent,  counsel, 
or  advocate  for  one  of  the  contesting  parties,  or  as  a  member  of 
a  national  or  international  court,  or  of  a  commission  of  inquiry,  or 
in  any  other  capacity. 

Any  doubt  upon  this  point  is  settled  by  the  decision  of  the 
court. 


75 

The  sense  in  which  incompatibility  is  used  in  the  project  refers  to 
incompatibility  of  position.  There  is,  however,  an  impropriety  of  a 
personal  or  official  kind,  separate  and  distinct,  and  yet  so  closely  re- 
lated as  to  be  properly  considered  in  one  and  the  same  connection. 

The  project  contemplates  that  the  court  shall  be,  in  the  language  of 
Mr.  Root's  instructions  to  the  American  delegates  to  the  Second  Hague 
Conference,  "composed  of  judges  who  are  judicial,  officers  and  nothing 
else  ,  .  .  and  who  will  devote  their  entire  time  to  the  trial  and  dis- 
position of  international  causes  by  judicial  methods  and  under  a  sense 
of  judicial  responsibility."  A  judge  who  is  to  be  a  judge  and  nothing 
else  should  not  engage  in  the  practice  of  law,  even  though  he  appear  in 
a  different  court.  The  fact  that  he  is  a  judge  might  influence,  favorably 
or  unfavorably,  the  judges  before  whom  he  pleaded,  and  in  any  event 
his  presence  would  be  embarrassing.  A  judge  of  an  international  court 
should  not  hold  a  brief  for  any  country  in  a  case  of  an  international 
nature.  He  should  be  free  to  decide  any  case  which  comes  before  him  as 
befits  a  judge,  as  my  Lord  Coke  would  say.  As  a  judge  he  should 
neither  be  asked  nor  permitted  to  pass  upon  his  own  conduct  in  a  pre- 
vious case,  as  he  would  if  he  were  allowed  to  sit  in  the  trial  and  dispo- 
sition of  a  case  decided  by  a  body,  national  or  international,  of  which  he 
had  been  a  member  or  in  which  he  had  appeared  as  agent,  counsel  or 
advocate.  These  restrictions  upon  the  activity  of  a  judge  are  the  veriest 
of  commonplaces;  yet  they  are  essential  to  the  administration  of  justice 
and  should  be  stated.  This  was  the  opinion  of  the  Second  Peace  Con- 
ference, which  embodied  them  in  Article  7  of  the  Draft  Convention  for 
the  Court  of  Arbitral  Justice.  This  was  the  opinion  of  the  Advisory 
Committee  of  Jurists,  which  took  them,  with  slight  changes  of  form, 
from  that  convention  and  incorporated  them  in  Article  17  of  the  project 
for  a  Permanent  Court  of  International  Justice. 

As  in  the  case  of  incompatibility  of  function,  so  in  the  case  of 
impropriety  of  action,  doubts  are  likeW  to  arise,  and  the  finality  of 
judicial  decision  requires  that  this  shall  be  resolved  in  such  a  way  as 
not  to  affect  the  judgment.  Hence,  in  one  case  as  in  the  other,  the 
court  is  to  decide. 

Article  18 

A  member  of  the  court  cannot  be  dismissed  unless,  in  the 
unanimous  opinion  of  the  other  members,  he  has  ceased  to  fulfil 
the  required  conditions. 

When  this  happens  a  formal  notification  shall  be  given  to  the 
Secretary  General. 

This  notification  makes  the  place  vacant. 


76 

Nothwithstanding  the  qualifications  prescribed  for  the  judges,  not- 
withstanding the  selection  of  the  candidates  by  the  national  groups  of 
the  Permanent  Court  of  Arbitration,  notwithstanding  the  scrutiny  of 
these  names  and  persons  by  the  Assembly  and  Council  before  their 
choice  by  these  bodies,  it  is  possible  that  an  unworthy  person  may  be 
elected,  or  that  the  person  meeting  the  requirements  at  the  mo- 
ment he  is  elected  may  cease  to  meet  them.  Such  instances  are 
not  unknown  in  national  life,  and  they  have  been  met  in  various  ways. 
In  Great  Britain  a  judge  may  be  removed  by  petition  of  both  houses  of 
Parliament.  In  the  United  States  a  federal  judge  may  be  impeached  in 
the  Senate  of  the  United  States  with  a  consequent  loss  of  office  if  the 
charges  be  sustained.  A  case  arose  in  the  Supreme  Court  of  the  United 
States  in  which  the  presence  of  a  justice  was  embarrassing  and  his  con- 
tinuance as  justice  interfered  with  the  efficiency  of  the  court,  without 
any  misconduct  on  the  part  of  the  member  in  question.  His  mind  be- 
came so  deranged  that  he  could  not  perform  his  judicial  duties.  His 
continuance  as  a  member  of  the  court  prevented  a  competent  successor 
from  performing  those  duties.  The  remedy  was  found  in  a  special  act 
of  Congress  enabling  him  to  retire  from  the  bench  with  full  salary. 

The  fact  that  a  judge  of  the  proposed  court  is  only  elected  for  a 
term  of  nine  years  will  necessarily  suggest  that,  except  in  flagrant  cases, 
no  action  be  taken.  Nevertheless,  if  an  extreme  case  present  itself,  there 
should  be  a  remedy.  Article  18  meets  the  emergency  by  providing  that 
the  unanimous  opinion  of  the  other  members  of  the  court  that  a  member 
has  ceased  to  fulfil  the  required  conditions,  transmitted  to  the  Secretary 
General,  shall  of  itself  vacate  the  seat  of  the  judge  in  question. 

Article  19 

The  members  of  the  court,  when  outside  their  own  country, 
shall  enjoy  the  privileges  and  immunities  of  diplomatic  repre- 
sentatives. 

It  is  unnecessary  to  descant  upon  the  simple  provision  which  secures 
to  members  of  the  court  the  privileges  and  immunities  which  duly  ac- 
credited diplomatic  agents  receive,  not  merely  at  the  hands  of  the  gov- 
ernment to  which  they  are  accredited,  but  at  the  hands  of  other  foreign 
governments  during  the  tenure  of  their  office.  The  provision  is  a 
familiar  one  in  the  Hague  Conventions.  It  is  found  in  the  Pacific 
Settlement  Convention  of  1899  (Article  24)  and  in  the  revision  of  1907 
(Article  46).  It  is  found  also  in  Article  13  of  the  Prize  Court  Conven- 
tion. It  was  taken  from  Article  5  of  the  Draft  Convention  for  the  Court 
of  Arbitral  Justice.  There  is  a  slight  difference  in  form,  but  apparently 
none  in  substance. 


77 

The  provision  is  no  doubt  necessary,  inasmuch  as  it  figures  in  these 
various  documents  adopted  on  three  separate  occasions.  It  is,  however, 
in  advance  of  international  law,  which  restricts  diplomatic  privileges 
and  innnunities  to  the  countries  to  which  the  representative  is  ac- 
credited. It  is  in  strict  accord  with  the  American  practice.  The  United 
States  has  always  accorded  diplomatic  privileges  and  immunities  to  all 
diplomats  touching  its  shores.  This  extension  of  the  strict  letter  has 
worked  well,  and  it  will  no  doubt  do  so  not  only  in  the  United  States  but 
also  in  other  countries. 

Article  20 

Every  member  of  the  court  shall,  before  taking  up  his  duties, 
make  a  solemn  declaration  in  open  court  that  he  will  exercise  his 
powers  impartially  and  conscientiously. 

The  oath  to  be  taken  by  a  judge  before  entering  upon  the  perform- 
ance of  his  duties  has  been  the  subject  of  elaborate  discussion  within 
national  lines  and  at  internationl  conferences  where  the  question  has 
arisen.  That  admirable  sect  known  as  Quakers,  who  call  themselves 
the  "Society  of  Friends,"  objected  to  swearing,  although  willing  to  affirm. 
Their  view  has  prevailed  generally,  so  that  to-day,  oath  and  aliirmation 
are  looked  upon  as  synonymous  nnd  accepted  as  equally  effective. 

At  the  Second  Hague  Conference  the  subject  was  discussed,  and 
both  in  the  Prize  Court  Convention  (Article  13)  and  in  the  Draft  Con- 
vention for  the  Court  of  Arbitral  Justice  (Article  5),  it  was  provided 
that  before  taking  their  seats,  the  judges  and  deputy  judges  should 
swear  or  make  a  solemn  affirmation  before  the  Administrative  Council 
to  exercise  their  functions  impartially  and  conscientiously.  This  is  the 
source  of  the  present  article,  but  "a  solemn  undertaking"  has  been  sub- 
stituted for  the  oath  or  affirmation. 

A  considerable  difference  of  opinion  manifested  itself  in  the  Com- 
mittee as  to  the  form  of  the  cngagment.  Among  the  forms  suggested 
was  that  the  judges  should  undertake  to  perform  their  duties  in  accord- 
ance with  international  law,  "even  should  such  law  not  coincide  with 
national  interests  or  desires,"^  and  others  of  like  import.  It  was  de- 
cided, however,  that  the  simpler  form  by  which  the  judge  undertook  in 
open  session  to  exercise  his  powers  impartially  and  conscientiously 
constituted  an  engagement  to  the  nations  which  fully  satisfy  the  require- 
ments of  the  case. 


'^  Five  Power  Plan.  Article  3. 


78 

Article  21 

The  court  shall  elect  its  president  and  vice  president  for  three 
years :  they  may  be  reelected. 

It  shall  appoint  its  registrar. 

The  duties  of  registrar  of  the  court  shall  not  be  considered 
incompatible  with  those  of  Secretary  General  of  the  Permanent 
Court  of  Arbitration. 

The  judges  are  elected;  they  are  so  many  individuals;  they  are  not 
a  court  and  they  can  not  enter  upon  the  performance  of  judicial  duties 
until  they  have  qualified  by  a  solemn  undertaking  to  perform  the  duties 
of  their  office.  After  this  formality  they  are  members  of  a  court,  and 
they  are  in  a  position  to  proceed  to  its  organization  as  far  as  this  de- 
pends upon  them. 

The  first  act  of  the  judges  is  declared  to  be  the  election  of  their  presi- 
dent and  vice  president.  This  is  a  very  important  step,  because  the 
president  of  a  court  is  not  merely  a  judge,  he  is  an  administrative 
officer  as  well.  If  a  man  of  dominating  personality,  he  runs  the  court 
and  goes  far  to  determine  its  judgment.  Therefore,  Ihe  greatest  care 
should  be  taken  in  his  selection.  In  his  absence,  the  vice  president  per- 
forms his  duties.  They  should  be  men  of  equal  character,  ability  and 
attainments,  so  that  in  the  absence  of  the  president  the  court,  under 
the  vice  president,  will  continue  its  labors  without  interruption  and 
without  detriment. 

It  was  felt  that,  given  tlie  immense  prestige  of  the  position  of  presi- 
dent of  the  court,  the  power  which  he  might  exercise  and  the  influence 
which  he  might  bring  to  bear  upon  his  colleagues,  it  was  inadvisable  to 
elect  him  for  the  full  term  of  his  office,  that  is,  nine  years.  One  year, 
on  the  contrary,  seemed  too  short,  inasmuch  as  the  president  is  to  re- 
side at  the  seat  of  the  court.  A  period  of  three  years  was  adopted  as  a 
compromise,  as  an  inducement  to  merit  continuance  in  office  at  the 
expiration  of  his  term,  and  of  a  further  term,  inasmuch  as  it  is  expressly 
provided  that  the  president  and  vice  president  may  be  reelected. 

It  has  been  stated  in  the  course  of  this  report  that  great  care  was 
taken  by  the  Committee  that  the  deputy  judges  should  possess  the  same 
qualifications  as  titular  judges.  Mr.  de  Lapradelle,  of  France,  frequently 
dwelt  upon  the  importance  of  according  to  the  deputy  judges  equal 
rank  and  dignity,  and  Mr.  Fernandes,  of  Brazil,  likewise  advocated 
their  cause.  They  were  finally  successful  in  their  advocacy.  The 
Anglo-American  members  of  the  Committee  were  not  much  impressed 
in  their  favor,  inasmuch  as  the  system  of  deputy  judges  does  not  exist 
in  the  English-speaking  world.    Little  by  little,  however,  as  other  mem- 


79 

bers  of  the  Committee  laid  stress  upon  the  nature  and  importance  of 
their  funclions  Lord  Phillimore  and  Mr.  lioot  yielded  to  the  arguments 
of  their  colleagues.  In  the  session  of  July  12,  Mr.  Root  said,  in  reply  to 
Mr.  de  Lapradelle's  remarks  on  the  subject: 

1  am  converted  to  his  view  now,  and  feel  bound  to  say  that  it  is 
desirable  to  magnify  the  importance  of  supplementary  judges,  and  for 
that  purpose  1  am  quite  ready  to  abandon  the  position  I  took  the  other 
day  in  regard  to  their  participation  in  the  election  of  the  president.  I 
think  that  this  consideration  should  overcome  the  consideration  we  had 
in  mind  at  that  time  to  exclude  them, —  I,  personally,  am  ready  to  agree 
to  the  reconsideration  of  that  subject,  and  to  give  them  a  share  in  the 
election  of  the  president,  in  order  that  the  position  may  be  deemed  of 
high  dignity  and  conscience,  and  that  the  states  may  feel  that  they  are 
receiving  consideration  if  their  citizens  become  supplementary'^  judges, 
and  that  these  judges  have  an  important  mission. 

Although  there  appears  to  have  been  no  vote  on  the  subject,  it  would 
seem  to  be  the  understanding  of  the  Committee  that  the  deputy  judges 
as  members  of  the  court  should  take  part  in  the  election  of  the  president 
and  the  vice  president.  This  means,  of  course,  that  they  would  be  obliged 
to  proceed  to  the  seat  of  the  court  at  least  once  in  three  years,  even  sup- 
posing that  they  did  not  in  the  meantime  participate  in  its  labors.  Con- 
siderable expense  would  be  involved  in  this,  but  the  reasons  advanced 
were  convincing  on  that  occasion  and  doubtless  will  be  in  the  future,  if 
the  question  should  again  arise. 

It  will  be  observed  that  throughout  the  entire  project  existing  agencies 
are  used  in  preference  to  creating  new  ones;  the  judges  of  the  court  are 
would  avail  itself  of  the  clerk's  office  of  the  Permanent  Court  of  Arbi- 
tration; the  judges  are  to  be  elected  by  the  concurrent  action  of  the 
Assembly  and  the  Council.  We  would  naturally  expect  that  the  project 
would  avail  itself  of  the  clerk's  office  of  the  Permanent  Court  of  Arbi- 
tration rather  than  create  a  new  office,  if  the  one  body  could  serve  the 
needs  of  both. 

When  it  was  decided  that  the  Court  of  International  Justice  should 
be  located  at  The  Hague,  as  is  the  Permanent  Court  of  Arbitration,  it 
was  suggested  that  the  Secretary  General  of  the  Permanent  Court  of 
Arbitration  could  properly  act  as  registrar  of  the  new  court.  Unwilling, 
however,  to  decide  a  question  in  advance  which  could  perhaps  better  be 
determined  by  experience,  the  Committee  contented  itself  with  the 
statement  that  the  duties  of  the  registrar  of  the  court  should  not  be  con- 
sidered as  incompatible  with  those  of  the  Secretary  General  of  the 
Permanent  Court  of  Arbitration.  This  was  a  happy  suggestion  and  it 
is  admirablv  stated.     It  shows  the  connection  between  the  tvN'O  institu- 


80 

tions  and  it  tends  to  prevent  the  appointment  of  unnecessary  officials 
whose  time  might  lie  heavy  on  their  hands.  It  also  saves  expense,  if  the 
nations  are  minded  to  become  economical  again. 

Article  22 

The  seat  of  the  court  shall  be  established  at  The  Hague. 
The  president  and  registrar  shall  reside  at  the  seat  of  the 
court. 

The  seat  of  the  court  is  to  be  at  The  Hague.  The  Advisory  Com- 
mittee was  not  only  unanimous  on  this  point,  but  would  not  allow  the 
court  to  be  removed  elsewhere  temporarily,  for  the  sake  of  convenience, 
or  even  in  the  case  of  force  majeure.  This  would  be  a  very  important 
provision  if  it  stood  alone.  It  does  not.  The  Permanent  Court  of  Arbitra- 
tion is  located  at  The  Hague.  An  Academy  of  International  Law  and  of 
Political  Science  will,  it  is  expected,  shortly  be  opened  at  The  Hague. 
The  international  conferences,  unfortunately  called  Peace  Conferences, 
but  in  the  future  to  be  called  Conferences  for  the  Advancement  of  In- 
ternational Law,  will,  it  is  hoped,  meet  regularly  and  at  stated  periods  at 
The  Hague.  This  means  that  The  Hague  is  to  become  the  judicial  center 
of  the  Society  of  Nations. 

The  choice  of  The  Hague  does  not  need  to  be  justified.  Without 
attempting  to  do  so,  it  may  be  permissible  to  add  in  passing  that  it  will 
doubtless  be  a  consolation  to  votaries  of  international  law  to  know  and 
to  feel  that  the  country  of  Grotius,  commonly  considered  the  father  of 
the  law  of  nations,  is  to  become  the  center  of  the  development  and  ad- 
ministration of  that  system  of  law.  Fortunately,  the  good  deeds  of 
some  men  are  not  interred  with  their  bones. 

Where  are  the  judges  to  reside?  The  seat  of  the  court  is  The  Hague. 
The  clerk's  office  must  be  with  the  court.  The  registrar  must  therefore 
reside  at  The  Hague  even  if  the  court  does  not  designate  as  registrar  the 
Secretary  General  of  the  Permanent  Court  of  Arbitration.  What  of  the 
judges?  The  president  should  be  with  the  court,  as  well  as  the  registrar. 
Article  22  so  provides.  But  what  of  the  other  judges?  The  time  may 
come  when  the  business  of  the  court  will  require  the  presence  of  all  the 
judges  at  The  Hague,  but  until  the  court  justifies  itself,  the  requirement 
of  residence  at  The  Hague  migbt  impose  too  great  a  hardship  upon  its 
members,  for  it  is  little  less  than  a  hardship  to  sever  the  ties  of  home 
and  to  settle  for  a  period  of  years  in  a  foreign  city.  The  sacrifice  should 
not  be  asked  unless  there  are  compensating  advantages.  Tlie  Supreme 
Court  of  the  United  States,  the  prototype  of  an  international  court  of 
justice,  had  little  to  do  in  the  first  years  of  its  existence,  and  its  judges 


81 

met  and  adjourned  until  cases  found  the  way  to  their  bar.  History 
has  a  way  of  repeating  itself.  If  it  does,  the  Permanent  Court  of  Inter- 
national Justice  will  one  day  need  all  of  its  judges  in  permanent  resi- 
dence at  The  Hague. 

Article  23 

A  session  shall  be  held  every  year. 

Unless  otherwise  provided  by  rules  of  court  this  session  shall 
begin  on  the  15th  June,  and  shall  continue  for  so  long  as  may 
be  necessary  to  complete  the  cases  on  the  list. 

The  president  may  summon  an  extraordinary  meeting  of  the 
court  whenever  necessary. 

It  is,  however,  essential  that  there  shall  be  one  session  of  the  court 
e\ery  year.  With  or  without  business  the  judges  should  come  together. 
They  should  exchange  views.  They  should  prepare  for  the  day  when 
business  is  sure  to  press  upon  the  hours  of  leisure.  The  date  of  the 
annual  session  should  be  fixed  in  advance,  so  that  the  members  of  the 
court  should  be  able  to  arrange  their  affairs  to  enable  them  to  attend. 
The  date  chosen  is  the  fifteenth  of  June — the  opening  date  of  the  Second 
Hague  Peace  Conference, — and  the  project  very  properly  provides  that 
the  session  shall  continue  as  long  as  may  be  necessary  to  complete  the 
cases  before  the  court.  This  provision  reproduces  the  substance,  with 
slight  changes  of  form,  of  Article  14  of  the  Draft  Convention  of  1907  for 
the  Court  of  Arbitral  Justice. 

It  is  improssible  to  determine  when  an  extra  session  of  the  court  may 
be  required  by  urgent  business.  The  contingency  was  foreseen  and  met 
by  the  last  clause  of  Article  23,  w^hich  authorizes  the  president  to  call  an 
extra  session  of  the  court  w^henever  circumstances  may  require  it. 

Article  24 

If,  for  some  special  reason,  a  member  of  the  court  considers 
that  he  cannot  lake  part  in  the  decision  of  a  particular  case,  he 
shall  so  inform  the  president. 

If,  for  some  special  reason,  the  president  considers  that  one 
of  the  members  of  the  court  should  not  sit  on  a  particular  case,  he 
shall  give  notice  to  the  member  concerned. 

In  the  event  of  the  president  and  the  member  not  agi'eeing  as 
to  the  course  to  be  adopted  in  any  such  case,  the  matter  shall  be 
settled  by  the  decision  of  the  court. 

The  court  is  in  session  at  The  Hague  and  cases  are  before  it.  One  of 
the  judges  believes,  rightly  or  wrongly,  that  he  should  not  take  part  in 
the  trial  and  disposition  of  a  particular  case.     What  should  he  do? 


82 

Article  24  provides  that  he  shall  in  such  a  case  inform  the  president. 
If,  on  the  other  hand,  the  president  is  of  the  opinion  that  a  judge  should 
not  sit  in  a  particular  case.  Article  24  provides  that  he  shall  give  notice 
to  the  member  concerned.  There  may  well  be  a  difference  of  opinion 
on  these  matters.  The  president  may  not  agree  with  the  member;  the 
member  may  not  agree  with  the  president.  Who  shall  decide?  The 
court,  says  Article  24,  and  rightly,  for  this  is  a  matter  that  concerns 
not  merely  the  member  and  the  president  but  the  judgment  of  the  court. 
Hence  the  court  should  decide.  It  will  be  observed  that  the  project 
refers  in  each  case  to  a  "special  reason,"  without,  however,  attempting 
to  define  or  state  it.  The  members  of  the  Committee  had  mentioned  in 
general  terms  the  incompatibility  between  the  position  of  judge  and 
national  and  international  positions  (Article  16).  They  had  stated  cer- 
tain contingencies  of  a  general  nature  which  should  prevent  a  judge 
from  taking  part  in  cases  before  the  court  (Article  17).  Special  cases, 
which  they  could  not  w^ell  enumerate  and  which  they  did  not  attempt  to 
define,  might  arise  in  which  the  conscience  of  the  member  or  the  anxiety 
of  the  president  might  suggest  abstention. 

The  project  foresees  and  provides  against  any  occurrence  of  this 
kind. 

Article  25 

The  full  court  shall  sit  except  when  it  is  expressly  provided 
olherwise. 

If  eleven  judges  cannot  be  present,  deputy  judges  shall  be 
called  upon  to  sit  in  order  to  make  up  this  number. 

If,  however,  eleven  judges  are  not  available,  a  quorum  of 
nine  judges  shall  suffice  to  constitute  the  court. 

The  court  is  to  consist  for  the  present  of  eleven  titular  and  four 
deputy  judges  for  a  variety  of  reasons  which  have  been  already  men- 
tioned under  Article  3.  The  project  verj'^  properly  provides  in  Article 
25  that  the  court  shall  exercise  its  powers  in  full  session;  that  it  shall  sit 
in  pleno.  Recognizing,  however,  that  circumstances  might  require  the 
general  rule  to  be  modified,  the  right  to  do  so  was  wisely  reserved.  It 
may  happen  that  eleven  judges  are  not  present,  or,  if  present,  that  one 
or  other  of  them  is  disqualified  for  reasons  set  forth  in  Articles  16  and 
17,  or  for  some  special  reason  contemplated  in  Article  24.  What  is  to 
be  done  in  such  cases  in  order  that  the  court  shall  have  its  eleven  mem- 
bers? Article  25  foresees  these  cases,  providing  that  in  any  one  of  them 
"deputy  judges  shall  be  called  upon  to  sit,  in  order  to  make  up  this 
number."  It  seems  very  easy  and  simple,  and  yet  it  was  the  result  of 
debate    and  compromise.    The  members  unfamiliar  with  the  system  of 


83 

deputy  judges  were  inclined  to  the  view  that,  if  eleven  judges  were  not 
present,  less  than  this  number  could  act,  and  fixed  the  quorum  at  nine. 
The  advocates  of  deputy  judges,  particularly  Mr.  Fernandes,  insisted, 
and  properly,  that  they  should  be  called  upon  to  complete  the  number. 
It  is  difficult  to  see  why  deputy  judges  should  be  appointed  if 
they  were  not  to  take  the  place  of  absent  members,  and  to  allow  the 
court  to  sit  with  a  much  reduced  membership  when  titular  judges  could 
not  be  present  would  discredit  in  advance  the  institution  of  deputy 
judges. 

Indeed,  the  absence  of  a  single  judge  weakens  the  court,  by  de- 
priving it  of  a  representative  of  a  main  form  of  civilization  or  of  a  prin- 
cipal system  of  jurisprudence.  The  addition  of  deputy  judges,  posses- 
sing the  qualifications  and  attainments  of  titular  judges,  would  remedy 
this  defect.  For  this  reason,  if  for  no  other,  the  advocates  of  deputy 
judges  spoke  in  the  interest  of  the  court.  There  was,  however,  another 
reason  of  the  greatest  importance,  political,  perhaps,  but  none  the  less 
to  be  considered  in  the  establishment  of  an  international  court  of  jus- 
tice. Many  nations,  as  Mr.  Fernandes  pointed  out,  would  never  be  repre- 
sented on  the  court  by  a  titular  judge.  Some  of  these  nations  would 
have  deputy  judges,  and  not  only  the  nations  having  deputy  judges  but 
nations  not  represented  upon  the  bench  would  feel  a  greater  interest  in 
a  court  if  the  deputy  judges  were  called  upon  to  take  part  in  its  pro- 
ceedings. Mr,  Fernandes'  view  prevailed  for  the  reason  stated  by  Mr. 
Root  at  the  session  of  Jul}^  14: 

I  am  now  ready  to  agree  with  Mr.  Fernandes  in  his  wish  that  if 
there  be  under  eleven  judges,  supplementary  judges  be  called  in,  but  I 
do  not  think  that  we  should  make  eleven  judges  necessary  to  the  exer- 
cise of  jurisdiction.  Some  will  be  ill,  some  will  be  detained,  and  then 
the  court  must  sit  idle.  Let  nine  be  competent  to  exercise  jurisdiction, 
but  provide  that  if  there  be  less  than  eleven,  supplementary  judges  be 
called  in. 

This  is  only  another  instance  of  the  truth  that  a  conference  or  com- 
mittee is  often  wiser  than  its  wisest  men. 

Article  26 

With  a  view  to  the  speedy  dispatch  of  business  the  court 
shall  form,  annually,  a  chamber  composed  of  three  judges,  who, 
at  the  request  of  the  contesting  parties  may  hear  and  determine 
cases  by  summary  procedure. 

It  was  provided  in  Article  25  that  the  court  should  sit  in  plciio  un- 
less otherwise  provided.    Article  26  does  otherwise  provide,  by  permit- 


84 

ting,  at  the  request  of  the  parties  in  controversy,  a  court  composed  of 
three  members  to  decide  the  disputes  which  they  may  wisli  to  have 
settled  by  the  smaller  tribunal. 

The  chamber  may  also  be  called  upon  to  give  advisory  opinions 
under  the  terms  of  Article  36  of  the  project. 

This  provision  is  taken  in  substance,  though  not  in  form,  from 
Article  16  of  the  Draft  Convention  of  1907  for  the  Court  of  Arbiti'al 
Justice,  which  authorized  the  court  annually  to  nominate  three  judges 
to  form  a  special  delegation.  The  reason  in  each  case  was  the  same. 
The  court  might  not  be  in  session,  and  it  would  take  much  time  and 
would  cause  the  expenditure  of  much  money  to  bring  all  of  the  judges 
to  The  Hague  to  pass  upon  questions  which  might  not  after  all,  in  the 
opinion  of  the  parties,  require  the  presence  of  the  full  court.  If  the  case 
should  turn  out  to  be  one  of  great  importance  and  of  universal  concern, 
the  president  would  doubtless  be  asked  by  one  or  other  of  the  parties 
in  litigation  to  exercise  the  authority  vested  in  him  by  Article  23,  to 
summon  an  extraordinary  meeting  of  the  full  court;  or,  if  the  court  were 
in  session,  the  case  would,  under  like  circumstances,  either  at  the  re- 
quest of  the  parties  or  upon  an  intimation  by  the  president,  be  trans- 
ferred to  the  full  bench. 

In  any  event,  summary  procedure  will  need  to  be  defined,  as  the 
expression  standing  alone  is  vague  and  indefinite.  It  is  a  newcomer  in 
international  relations.  It  was  proposed  in  1907  by  the  French  delega- 
tion to  the  Second  Hague  Conference  to  facilitate  recourse  to  arbitra- 
tion, by  cutting  down  the  number  of  arbiters  from  five  to  three,  by  sub- 
stituting written  procedure  for  oral  argument,  by  dispensing  with  ad- 
vocates and  counsel,  although,  by  the  Pacific  Settlement  Convention 
creating  it,  the  tribunal  was  expressly  authorized  "to  demand  oral  ex- 
planations from  the  agents  of  the  two  parties,  as  well  as  from  the  ex- 
perts and  witnesses  whose  appearance  in  court  it  may  consider  useful."^ 
This  system  has  been  invoked  in  the  settlement  of  the  dispute  decided 
at  The  Hague  in  1920  between  France,  Great  Britain  and  Spain,  on  the 
one  hand,  and  Portugal,  on  the  other,  growing  out  of  the  confiscation  by 
Portugal  of  church  property  belonging  to  citizens  or  subjects  of  the  com- 
plaining states. 

It  may  perhaps  be  stated  before  leaving  this  phase  of  the  subject, 
that  there  was  much  discussion  as  to  the  formation  of  such  a  chamber. 
Baron  Descamps  had  proposed  a  chamber  of  five,  and  indeed,  advocated 
investing  a  single  judge  with  the  power  to  pass  upon  questions  which 


^  For   arbitration  by    summary   procedure,   see   Pacific   Settlement    Convention, 
1907,  Articles  80-91. 


85 

parties  in  controversy  should  care  to  submit  to  his  determination. 
Eventually  the  present  text  was  adopted,  largely,  it  is  believed,  because 
of  the  precedent  found  for  it  in  the  Draft  Convention  for  the  Court  of 
Arbitral  Justice. 

'  It  is  not  stated  in  the  article  that  the  three  judges  forming  the 
special  chamber  shall  reside  at  The  Hague.  They  will  presumably 
be  chosen  in  such  a  way  that  they  can  proceed  to  The  Hague  with- 
out delay,  inasmuch  as  the  avoidance  of  delay  is  a  reason  for  its  crea- 
tion.   The  world's  business  should  not  wait  upon  the  court. 

Article  27 

The  court  shall  frame  rules  for  regulating  its  procedure.  In 
particular,  it  shall  lay  down  rules  for  summary  procedure. 

It  has  been  stated  that  summary  procedure  needs  definition. 
Article  27  provides  that  it  shall  have  it. 

In  addition,  the  court  is  authorized  and  required  to  draft  the  rules 
of  procedure  according  to  which  it  will  exercise  its  jurisdiction.  Doubt- 
less it  will  take  up  these  matters  at  its  first  session,  as  nations  can  not 
be  expected  to  submit  disputes  to  summary  procedure  without  knowing 
how  the  court  will  proceed  in  such  cases,  and  it  is  not  to  be  expected 
that  nations  will  resort  to  the  full  court  without  knowing  in  advance  the 
general  rules  of  procedure  which  it  prescribes.  In  an}'  event,  prospec- 
tive litigants  would  be  aided  in  the  presentation  of  their  cases,  as  well 
as  in  their  conduct,  if  the  rules  of  procedure  were  known  in  advance. 

Article  28 

Judges  of  the  nationality  of  each  contesting  party  shall  retain 
their  right  to  sit  in  the  case  before  the  court. 

If  the  court  includes  upon  the  bench  a  judge  of  the  nationality 
of  one  of  the  parties  only,  the  other  party  may  select  from  among 
the  deputy  judges,  a  judge  of  its  nationality,  if  there  be  one.  If 
there  should  not  be  one,  the  party  may  chose  a  judge,  preferablj' 
from  among  those  persons  who  have  been  nominated  as  candi- 
dates by  a  national  group  in  the  Court  of  Arbitration. 

If  the  court  includes  upon  the  bench  no  judge  of  the  nation- 
ality of  the  contesting  parties,  each  of  these  may  proceed  to  select 
or  choose  a  judge  as  provided  in  the  preceding  paragraph. 

Should  there  be  several  parties  in  the  same  interest,  they 
shall,  for  the  purpose  of  the  preceding  provisions,  be  reckoned  as 
one  party  only. 

Judges  selected  or  chosen  as  laid  down  in  paragraphs  2  and 


86 

3  of  this  article  shall  fulfil  the  conditions  required  by  Articles  2, 16, 
17,  20,  24  of  this  statute.  They  shall  take  part  in  the  decision  on  an 
equal  footing  with  their  colleagues. 

It  may  happen  that  onlj^  one  or  the  other  of  the  parties  litigant  has 
a  judge  of  its  nationalitj^  upon  the  bench,  or  that  neither  party  is  repre- 
sented by  a  judge  of  its  nationality  in  the  court.  What  is  to  be  done? 
This  question  puzzled  the  members  of  the  court,  delayed  an  agreement 
upon  its  organization  and,  from  time  to  time,  threatened  to  be  the  rock 
upon  which  the  Committee  might  split.  The  views  of  some  members 
had  been  formed  in  advance  on  this  point.  They  held  them  strongly, 
they  expressed  them  forcibly,  and,  it  must  be  admitted  that  advocates  of 
exclusion  from  the  court  of  representatives  of  nations  with  causes  before 
it  could  invoke  theory  in  their  behalf.  Advocates  of  the  presence  of 
national  representatives  could  and  did  invoke  expediency  in  support  of 
their  contention.  A  careful  and  thorough  examination  of  the  question 
discloses  that  what  each  sought,  namely,  impartial  determination  of 
questions  submitted  to  the  court,  could  be  obtained  in  an  international 
tribunal  in  which  nations  in  controversy  were  represented,  whereas  in 
national  courts,  as  Pascal  has  finely  and  for  all  time  said,  "It  is  not  per- 
mitted to  the  most  equitable  of  men  to  be  a  judge  in  his  own  cause."^ 

The  problem  of  nationality  cannot  be  avoided.  The  persons  elected 
judges  of  the  court  must  belong  to  different  countries.  They  do  not 
lose  their  nationality  merelj^  by  becoming  judges.  Some  nations  appear 
to  be  unwilling,  they  were  certainly  so  in  the  past,  to  agree  to  an  inter- 
national court  unless  there  is  a  reasonable  guarantee  that  they  be  repre- 
sented in  it  b}"  a  person  of  their  nationality,  although  not  necessarily  of 
their  choice.  No  nation,  it  is  believed,  would  willingly  be  a  party  to  an 
international  court  from  which  persons  of  their  nationality  were  to  be 
excluded.  Representatives  of  nations  in  controversy  can  not  always 
be  included,  if  the  court  is  to  consist  of  a  limited  number  of  judges 
chosen  in  advance  of  and  not  subject  to  modification  upon  the  presen- 
tation of  cases.  In  the  early  sessions  more  than  one  member  of  the 
Committee  made  it  clear  that  his  countr}'^  would  have  more  confidence 
in  a  court  if  it  were  represented,  and  the  fear  was  expressed  that  no 
country  would  have  complete  confidence  unless  it  had  a  judge  of  its 
nationality  upon  the  bench.  The  question,  therefore,  before  the  Com- 
mittee was  how  to  produce  the  greatest  confidence  on  the  part  of  liti- 
gating  nations — because   without   confidence   they  would   not   submit 


^  Pensees  de  Blaise  Pascal,  Leon  Brunschvicg  edition   (Paris,   1904),  Vol.   II, 
12. 


87 

cases — with  a  guarantee  of  impartiality  of  decision,  without  which  the 
court  should  not  be  created,  and  if  created,  would  be  doomed  to  failure. 
If  the  court  were  for  a  limited  number  of  countries,  and  each  country 
were  to  have  a  judge,  the  question  would  not  arise. 

The  members  of  the  Committee  were  not  without  sources  of  in- 
formation which  would  lead  them,  and  did  ultimately  lead  them,  to  a 
satisfactory'  conclusion.  Article  15  of  the  International  Prize  Court 
declared  that  the  large  Powers,  as  they  existed  in  1907,  should  always 
be  represented  in  the  court.  Article  16  of  the  same  convention  provided 
that  if  a  belligerent  Power  did  not  have  a  judge  upon  the  bench  at  the 
time  of  the  trial  and  decision  of  the  case,  it  could  ask  that  "the  judge  ap- 
pointed b}^  it  should  take  part  in  the  settlement  of  all  cases  arising  from 
the  war."  To  avoid  increasing  the  number  of  judges,  lots  were  to  be 
drawn  for  the  elimination  of  one  or  more,  but  in  no  case  could  the 
judges  of  the  great  Powers  be  excluded,  nor  could  the  judge  appointed 
by  the  lesser  belligerent  be  affected.  In  addition,  the  belligerent  captor 
was  to  be  entitled  "to  appoint  a  naval  officer  of  high  rank  to  sit  as  as- 
sessor, but  with  no  voice  in  the  decision."  A  neutral  Power,  party  to 
the  proceedings,  or  whose  subject  or  citizen  was  a  party,  was  accorded 
the  right  to  appoint  an  assessor,  who  was,  however,  to  be  an  expert,  not 
a  judge. 

The  Draft  Convention  for  the  Court  of  Arbitral  Justice  did  not  con- 
tain any  such  provision,  inasmuch  as  the  Conference  was  unable  to  agree 
upon  the  appointment  of  judges  and  thus  to  constitute  the  court.  In  the 
draft  convention  concluded  at  Paris  in  March,  1910,  by  representatives 
of  Germany,  France,  Great  Britain  and  the  United  States,  to  put  into 
eff'ect  the  draft  convention  recommended  by  the  Second  Peace  Confer- 
ence relating  to  the  establishment  of  a  Court  of  Arbitral  Justice,  it  was 
provided  in  Article  4  that:  "If  a  contracting  Power  engaged  in  con- 
troversy has,  according  to  the  rota,  no  judge  sitting  in  the  court,  it  may 
ask  that  the  judge  or  substitute  judge  appointed  by  it  sit  with  the  court 
in  judgment  of  the  case."  This  project  adopted  the  method  of  the  Prize 
Court  for  constituting  the  Court  of  Arbitral  Justice.  The  draft  con- 
vention of  1910  was  reconsidered  bj'  representatives  of  the  four  Powers 
in  question  at  The  Hague  in  July,  1910.  Article  4  was  retained  without 
modification.^" 

For  reasons  which  are  irrelative  to  the  present  purpose,  the  Prize 
Court  was  not  established,  and  no  further  attempt  was  made  to  establish 


^°  For  the  texts  of  these  draft  conventions  of  1010,  see  J.  B.  Scott.  An  Inter- 
national Court  of  Justice  (1014),  pp.  01-07;  Une  cour  de  justice  internaiionale 
(1918),  pp.  136-144. 


the  Court  of  Arbitral  Justice  by  this  method.  In  1914,  a  project  was  laid 
before  and  met  with  the  approval  of  the  Netherland  Minister  of  Foreign 
Affairs,  for  the  establishment  of  a  Court  of  Arbitral  Justice  by  and  for 
Germany,  the  United  States,  Austria-Hungary,  France,  Great  Britain, 
Italy,  Japan,  the  Netherlands,  and  Russia.  It  was  to  consist  of  nine  mem- 
bers, one  to  be  appointed  by  each  of  the  contracting  Powers.  It  was 
recognized  that  non-contracting  states  might  wish  to  avail  themselves  of 
the  court.  It  was  also  recognized  that  they  were  not  likely  to  do  so  unless 
they  were  placed  upon  an  exact  footing  of  equality,  during  the  trial  and 
decision  of  their  cases,  with  the  titular  judges  of  the  contracting 
Powers.^^    Article  5  of  this  proposed  tribunal  was  thus  worded: 

If  the  controversy  submitted  to  the  Court  of  Arbitral  Justice  or  its 
delegation  be  between  a  contracting  and  a  non-contracting  Power,  the 
latter  shall  have  the  right  to  appoint  a  judge  to  take  part  in  the  trial 
and  determination  of  the  case.  If  the  Powers  in  controversy  be  non- 
contracting  Powers,  each  one  thereof  shall  have  the  right  to  appoint  a 
judge  to  take  part  in  the  trial  and  determination  of  the  case. 

These  various  documents  were  in  the  possession  and  therefore 
within  the  knowledge  of  each  member  of  the  Advisory  Committee. 

The  proposal  of  Mr.  Adatci  made  in  the  first  session  of  the  Com- 
mittee after  its  formal  opening,  provided  that  a  state  in  controversy 
which  did  not  have  a  judge  upon  the  bench  should  appoint  a  temporary 
judge  to  take  part  in  the  trial  and  determination  of  the  case.  This  view 
ultimately  prevailed.  Indeed,  it  was  bound  to  prevail  unless  the  large 
states  which  happened  to  have  judges  of  their  nationality  upon  the 
bench  would  consent  to  withdraw  their  judges  at  the  very  moment 
when  they  were  most  desirous  of  having  them  present,  namely,  during 
the  trial  and  disposition  of  cases  in  which  these  large  Powers  were  con- 
cerned wdth  states  not  represented  on  the  court.  The  large  states  were 
unwilling  to  have  the  judges  of  their  nationality  withdrawn  when  they 
happened  to  be  litigants.  Tliey  were  also  unwilling  to  withdraw  their 
judges  and  to  appoint  assessors  who  should  take  part  in  the  trial  of  the 
cause,  participate  in  the  discussions  in  chambers,  but  who  should  not 
vote  when  it  came  to  the  decision  of  the  case. 

It  seemed  manifestly  unfair,  not  perhaps  in  theory  but  in  fact,  that 
one  litigant,  large  or  small,  should  by  chance  of  election,  have  a  judge 
of  its  nationality,  and  the  other  party  to  the  controversy  be  without  a 
judge.     If,  however,  a  temporary  judge  were  added  to  the  court  by  a 


"  For  the  text  of  tliis  project,  see  J.  B.  Scott,  An  International  Court  of  Justice, 
pp.  08-100;  Une  cour  de  justice  Internationale,  pp.  145-147. 


89 

litigant  party  so  situated,  it  would  seem  to  follow  that  two  litigating 
parties  without  judges  of  their  nationality  should  he  entitled  to  appoint 
temporary  judges  during  the  trial  and  disposition  of  their  cases.  Ex- 
pediency might  suggest  the  presence  of  national  judges.  There  were 
other  reasons,  however,  which  permitted,  if  they  did  not  require  it,  and 
there  was  one  sure  way  of  overcoming  the  fear  that  the  presence  of 
national  judges  might  affect  the  impartiality  of  decision.  There  was  a 
desire  on  the  part  of  some  members,  particularly  Mr.  Altamira,  of 
Spain,  and  Mr,  Adalci,  of  Japan,  to  have  forms  of  civilization  con- 
sidered in  the  election  of  judges.  There  was  a  desire,  for  different 
reasons  it  may  be,  on  the  part  of  Mr.  Adatci,  Baron  Descamps,  and 
Mr.  Root,  to  have  systems  of  law  of  different  countries  considered  in 
electing  the  judges.  At  bottom  these  were  one  and  the  same,  namely, 
to  have  an  understanding  court;  a  court  composed  of  judges  who 
should  themselves  be  products  of  the  main  forms  of  civilization  and 
who  should  be  trained  in  the  principal  systems  of  jurisprudence  of 
the  different  countries  of  the  world.  This,  however,  was  not  enough, 
because  cases  presented  to  the  court  would  require  for  their  deter- 
mination not  only  a  knowledge  of  the  principal  systems  of  jurispru- 
dence, but  a  knowledge  of  the  system  of  law  obtaining  in  the  country 
in  which  the  case  arose  and  from  which  it  came.  A  jurist  of  this 
nationality  is  most  familiar  with  this  system,  and  the  presence  of  such 
a  judge  during  the  trial  and  disposition  of  a  case  so  circumstanced 
would  be  of  advantage  to  the  other  members  of  the  court. 

If  the  court  consisted  of  a  small  number  of  judges,  the  presence 
of  judges  of  the  litigating  parties  might  seem,  at  least  to  the  public,  to 
affect  the  judgment  of  the  court.  But  with  every  increase  in  the  mem- 
bership of  the  court,  this  objection  would  become  of  less  moment, 
until  in  a  court  of  a  large  number  of  judges,  the  objection  would  be 
overcome,  if,  indeed,  it  would  not  cease  to  exist,  and  the  presence  of 
judges  of  the  litigating  parties  become  a  positive  advantage.  In  a 
case  of  summary  procedure,  in  which  the  court  is  to  consist  of  three 
members,  representatives  of  the  litigating  parties  would  naturally  in- 
fluence the  decision;  in  a  court  of  five  members,  they  would  have  less 
influence;  in  a  court  of  eleven,  the  decision  would  be  reached  by  nine 
indifferent  persons,  enlightened,  but  not  controlled  by  the  presence  of 
colleagues  belonging  to  the  nations  in  litigation. 

These  views  prevailed,  and  they  are  embodied  in  Article  28. 
Whatever  scruples  there  may  have  been  originally  on  the  part  of 
various  members  were  overcome,  it  is  believed,  by  the  express  provi- 
sion suggested  by  Mr.  Adatci  and  accepted  by  his  colleagues,  that  the 


90 

judges  appointed  for  a  temporary  purpose  should  possess  the  qualifica- 
tions of  titular  judges,  and  should  fulfil  all  the  conditions  required  of 
them  b}'  the  terms  of  the  project.  As  finally  drafted,  the  article  was 
adopted  without  a  dissenting  voice. 

Article  29 

The  judges  shall  receive  an  annual  salary  to  be  determined 
by  the  Assembl}'  of  the  League  of  Nations  upon  the  proposal  of 
the  Council.  This  salary  must  not  be  decreased  during  the 
period  of  a  judge's  appointment. 

The  president  shall  receive  a  special  grant  for  his  period  of 
office,  to  be  fixed  in  the  same  wa3\ 

Deputy  judges  shall  receive  a  grant,  for  the  actual  perform- 
ance of  their  duties,  to  be  fixed  in  the  same  way. 

Traveling  expenses  incurred  in  the  performance  of  their 
duties  shall  be  refunded  to  judges  and  deputy  judges  who  do 
not  reside  at  the  seat  of  the  court. 

Grants  due  to  judges  selected  or  chosen  as  provided  in  Arti- 
cle 28  shall  be  determined  in  the  same  way. 

The  salary  of  the  registrar  shall  be  decided  by  the  Council 
upon  the  proposal  of  the  court. 

A  special  regulation  shall  provide  for  the  pensions  to  which 
the  judges  and  registrar  shall  be  entitled. 

Persons  of  such  eminent  attainments  in  their  different  countries 
can  not  be  expected  to  render  the  services  asked  of  them  without  ade- 
quate compensation  which  shall  necessarily  include  their  traveling  ex- 
penses to  and  from  the  court,  except  in  the  case  of  a  judge  residing  at 
The  Hague.  Whatever  the  salary  may  be,  it  should  not  be  decreased 
during  the  judge's  tenure  of  ofTice,  as  that  might  seem  to  interfere  with 
his  independence,  and  every  judge,  titular  or  deputy,  should  receive  an 
equal  salary  during  the  performance  of  judicial  duties. 

The  case  of  the  president  is  a  case  apart.  He  should  receive  a  larger 
salary,  inasmuch  as  more  is  required  of  him  than  of  any  other  member 
of  the  court.  If  he  be  not  a  resident  of  Holland,  he  will  have  to  transfer 
his  household  gods  to  The  Hague.  The  additional  expenses  which  he 
must  necessarily  incur  should  be  covered.  Otherwise  the  added  honor 
will  be  an  added  burden. 

What  shall  be  the  honorarium  of  the  judge?  Lord  Phillimore 
suggested  a  lump  sum  of  six  thousand  pounds  sterling,  to  whom  Baron 
Marschall  von  Bieberstein,  Germany's  first  delegate  to  the  Second 
Hague  Conference,  would  have  replied,  as  he  did  in  considering  the 
same  question,  that  "such  a  salary  would  cause  a  revolution"  in  some 


91 

of  the  states,  which  he  was  bold  enough  to  mention.  The  salary  which 
he  considered  adequate  was  six  thousand  Dutch  florins,  which,  given 
the  high  cost  of  living,  might  at  the  present  day  produce  a  counter- 
revolution to  escape  the  appointment.  The  Committee  determined 
that  the  Assembly  of  the  League  of  Nations  should  fix  the  salary'  upon 
the  proposal  of  the  Council,  and  wisely  refrained  from  an  expression 
of  opinion  on  its  part.  The  members,  however,  were  clear  in  their  minds 
that  the  salary  should  be  ample  and  generous. 

While  it  is  fair  to  presume  that  deputy  judges  will  not  receive  the 
same  compensation  as  titular  judges,  the  fact  that  they  may  be  called 
upon  at  any  time  to  attend  the  sessions  of  the  court,  that  they  must 
hold  themselves  in  readiness,  and  that  they  may  not  be  professionally 
engaged  in  pursuits  which  would  disqualify'  them  as  judges,  would 
suggest,  if  indeed  it  did  not  require,  that  they  receive  compensation 
irrespective  of  services.  In  addition,  they  should  receive  extra  allow- 
ance when  actually  engaged  in  the  performance  of  judicial  duties  as 
members  of  the  court  so  that  the  salary  of  titular  and  deputy  be  the 
same  under  like  conditions. 

The  registrar  is  also  to  be  a  salaried  officer,  but  as  his  duties  lie 
particularly  within  the  knowledge  of  the  court,  his  salary  is  to  be  fixed 
bj'  the  Council  upon  the  recommendation  of  the  court. 

The  compensation,  however,  to  which  a  judge  is  entitled  may  not 
cease  upon  the  expiration  of  his  term  of  office.  It  is  considered  that 
nine  years  is  a  long  period  to  take  out  of  the  life  of  a  man  already 
advanced  in  years.  He  must  perforce  cease  the  exclusive  practice  of 
his  profession  if  he  accept  the  position  of  judge,  and  he  may  be  obliged 
to  give  it  up  altogether. 

It  seemed  only  fair  to  the  Committee  that  the  judges  and  the  regis- 
trar should  be  entitled  to  a  pension  after  the  termination  of  their 
services.  But  as  in  the  case  of  salary-,  they  refrained  from  suggesting 
what  the  amount  of  one  or  the  other  might  be,  leaving  the  matter  to 
the  Assembly  and  the  Council,  indicating,  however,  in  the  last  clause  of 
Article  29  that  a  special  regulation  should  provide  for  the  pensions  to 
which  judges  and  registrars  should  be  entitled. 

Article  30 

The  expenses  of  the  court  shall  be  borne  by  the  League  of 
Nations,  in  such  a  manner  as  shall  be  decided  by  the  Assembly 
upon  the  proposal  of  tlie  Council. 

The  expenses  of  the  court  are,  of  course,  to  be  borne  by  the  League 
of  Nations,  of  which  the  court  is  the  judicial  organ.     The  appropriate 


92 

officers  will  be  charged  with  the  duty  of  preparing  the  estimates  for 
the  forthcoming  year.  If  they  are  not  made  by  the  Council,  they  will 
be  presented  to  that  body  and,  as  in  other  cases,  they  will  be  submitted 
to  the  Assembly  which  represents  all  the  members.  Shall  these  ex- 
penses be  borne  in  equal  proportion  by  all  nations,  large  and  small 
alike,  or  shall  the  states  be  classified  for  this  purpose,  as  in  the  Uni- 
versal Postal  Union?  This  is  a  question  for  the  Society  of  Nations  to 
determine. 

It  is  of  more  than  passing  interest  to  note  in  this  connection  that 
the  Five  Power  Plan,  in  February,  1920,  by  official  representatives  of  the 
Governments  of  Denmark,  Norway,  Holland,  Sweden  and  Switzerland, 
provided  in  its  nineteenth  article  that  the  members  of  the  League  should 
contribute  equally  to  the  expenses  of  the  court. 

The  small  states  have  the  courage  of  their  convictions,  and  in  ac- 
cepting equality  they  accept  its  consequences  even  although  they  hap- 
pen to  touch  the  purse. 

CHAPTER  II 

Competence  of  the  Court 
Article  31 

The  court  shall  have  jurisdiction  to  hear  and  determine  suits 
between  states. 

The  first  union  of  free,  independent  and  sovereign  states  which  has 
survived  its  framers  and  has  proved  adequate  provides  that  "the  judi- 
cial Power  of  the  United  States,  shall  be  vested  in  one  supreme  Court,"^ 
and  that  this  judicial  power  "shall  extend  ...  to  Controversies 
between  two  or  more  States."  ^ 

The  first  project  for  a  Permanent  Court  of  International  Justice 
adopted  by  the  representatives  of  the  states  in  conference  at  The  Hague 
in  1907,  provides  in  its  seventeenth  article  that  "the  Court  of  Arbitral 
Justice  is  competent  to  deal  with  all  cases  submitted  to  it,  in  virtue 
either  of  a  general  undertaking  to  have  recourse  to  arbitration  or  of  a 
special  agreement." 

The  first  project  for  a  permanent  court  for  the  League  of  Nations 
drafted  at  The  Hague  by  an  Advisory  Committee  of  Jurists  provides 
that  "the  court  is  competent  to  deal  with  cases  between  states." 


•^Constitution  of  the  United  States,  Article  III,  section   1, 
^  Ibid.,  section  2. 


93 

The  Constitution  of  the  American  Union  created  a  court  to  super- 
sede the  temporary  tribunals  created  under  the  ninth  of  the  Articles  of 
Confederation.  The  Second  Hague  Conference  attempted  to  create  a 
court  to  be  established  alongside  of  and  to  coexist  with,  but  not  to  sup- 
plant, the  Permanent  Court  of  Arbitration,  not  unlike  the  temporary 
connnissions  organized  under  the  Articles  of  Confederation  of  the 
United  States. 

Tlie  Connnittee  of  Jurists  took  up  the  project  where  it  had  been 
left  by  the  Conference  of  1907,  and,  by  devising  a  method  of  appoint- 
ing the  judges  acceptable  to  all  of  its  members,  and  therefore  likely  to 
be  acceptable  to  the  states  whereof  they  are  subjects  or  citizens,  and, 
it  is  to  be  hoped,  acceptable  to  the  states  forming  the  League  of  Nations, 
will  enable  the  provisions  of  the  draft  convention  of  1907,  revised  and 
enlarged,  to  be  put  into  effect  in  1920. 

The  controversies  to  be  submitted  to  the  Supreme  Court  of  the 
American  Union  were  to  be  disputes  of  a  "judiciary  Nature."  The 
cases  to  be  submitted  to  the  proposed  court  of  1907  were  to  be  judicial, 
or  justiciable  cases.  The  cases  to  be  submitted  to  the  court  of  1920 
are  to  be  controversies  of  a  legal  nature — questions  which  can  properly 
become  the  subject  of  litigation  in  a  court  of  justice. 

In  the  Conference  of  the  American  States,  commonly  called  the 
Federal  Convention  of  1787,  Mr.  Madison,  speaking  of  the  jurisdiction 
of  the  proposed  court,  asked  his  colleagues  "whether  it  ought  not  to 
be  limited  to  cases  of  a  Judiciars'^  Nature,"  and  in  commenting  on  the 
jurisdiction  of  the  court,  he  expressed  the  opinion,  borne  out  by  a 
century  and  more  of  experience,  "that  the  jurisdiction  given  was  con- 
structively limited  to  cases  of  a  Judiciary  nature."  ^  The  jurisdiction, 
however,  of  the  proposed  court  of  1907  and  of  the  court  of  1920, 
although  the  same  in  nature,  is  in  one  respect  more  comprehensive, 
inasmuch  as  the  Eleventh  Amendment  to  the  Constitution  of  the  United 
States  withdrew  from  the  Supreme  Court  its  power  to  entertain  and 
to  decide  "any  suit  in  law  or  equity,  commenced  or  prosecuted  against 
one  of  the  United  States  by  Citizens  of  another  State,  or  by  Citizens  or 
Subjects  of  any  Foreign  State."  This  amendment  has  been  construed 
by  the  Supreme  Court  to  mean  that  the  controversy  whereof  it  can 
take  jurisdiction  must  be  between  states  as  such,  not  by  a  state  on 
behalf  of  its  citizens  against  a  state  of  the  American  Union.* 


'Session  of  August  27,  1787,  Bocuvientary  History  of  the  Constitution  of  the 
United  States  of  America,  Vol.  Ill  (1000),  p.  626. 

*  This  question  was  elaborately  ar<rued,  carefully  considered  and  expressly 
adjudged  in  the  State  of  Xerc  Hampshire  v.  State  of  Louisiana  (108  United  States 
Reports,  76,  88,  91),  decided  in  1883. 


94 

It  is  the  practice  of  states  to  present  through  diplomatic  chan- 
nels the  claims  of  their  citizens  or  suhjects  against  other  states. 
It  is  intended  that  this  process  shall  continue,  and  that  the  jurisdic- 
tion of  the  court  shall  begin  where  diplomacy  leaves  off;  that  is  to  say, 
the  Permanent  Court  of  International  Justice  is  competent  to  assume 
jurisdiction  of  disputes  of  a  justiciable  nature  which  diplomacy  has 
failed  to  adjust,  whether  the  dispute  is  laid  before  the  court  by  a  state 
in  its  own  behalf  or  acting  in  behalf  of  its  subject  or  citizen.  By 
espousing  the  cause  of  its  national,  it  makes  the  case  its  own,  so  that 
the  court  may  assume  jurisdiction  of  it,  if  it  be  of  a  justiciable  nature, 
and  the  state  may  prosecute  it  to  judgment  before  the  court.  It  is 
important  that  there  be  no  doubt  about  the  action  of  the  state  in  the 
premises.  It  was  the  intention  of  the  Committee  that  the  state  should 
be  dominiis  litis,  and  that  the  individual  had  no  locus  standi  in  the 
court.  The  judgment,  therefore,  is  to  be  a  judgment  of  the  court  in 
favor  of  a  state  in  a  suit  between  states.  The  state  in  whose  favor  the 
judgment  has  been  rendered  disposes  of  the  subject-matter  of  the  judg- 
ment according  to  its  sovereign  pleasure,  conveying  to  its  subject  or 
citizen  such  interest  in  the  judgment  as  it  pleases.  Propositions  were 
made  to  and  rejected  by  the  Committee  to  permit  individuals  as  such 
to  bring  suits  against  states  in  cases  in  which  the  state,  stepping  from 
its  sovereign  capacity,  had  entered  what  might  be  called  the  domain 
of  commerce.  To  entertain  a  suit  of  this  kind,  therefore,  the  state 
whereof  the  claimant  is  a  subject  or  citizen  must  espouse  and  present 
the  claim  in  its  own  behalf.  Under  these  circumstances  the  state  natu- 
rally frames  the  issue  and  assumes  the  conduct  of  the  case  before  the 
court.  To  what  extent  it  may  consult  its  citizen  or  subject,  or  associate 
this  cftizen  or  subject  with  the  preparation  of  the  case  before  presen- 
tation or  its  conduct  before  the  court,  is  a  matter  for  the  state  and  for 
the  state  alone  to  determine. 

As  will  be  presently  seen,  the  Permanent  Court  of  International 
Justice  only  assumes  jurisdiction  of  a  case  which  diplomacy  has  failed 
to  adjust.  It  therefore  follows  that  cases  submitted  to  its  jurisdiction 
are  such  that  a  state  could  properly  present  another  state  through  its 
diplomatic  channels.  These  cases  will  be  largely,  if  not  always,  claims  of 
its  citizens  or  subjects.  They  may,  however,  be  claims  of  citizens  or  sub- 
jects of  other  states  to  which  by  the  practice  of  nations,  by  treaty,  or 


If,  however,  an  individual  cedes  his  interest  in  and  title  to  a  claim  to  a  state 
of  the  American  Union,  that  state  can  sue  in  its  own  name  and  behalf.  This  was 
expressly  so  held,  upon  great  deliberation,  in  State  of  South  Dakota  v.  State  of 
North  Carolina   (192  United  States  Reports,  280),  decided  in   1904. 


95 

special  agreement,  a  state  may  accord  diplomatic  protection.  Such 
cases  are  special.  A  case  in  point  is  the  protection  accorded  to  racial, 
religious  or  linguistic  minorities  by  recent  treaties,  which  accord  the 
right  of  a  foreign  state  to  espouse  the  cause  of  the  minorities  in  question 
and  to  lay  the  dispute  before  the  Permanent  Court  of  International 
Justice. 

In  addition  to  jurisdiction  of  disputes  concerning  minorities,  the 
court,  under  the  Treaty  of  Versailles  and  other  Peace  treaties  of  1919, 
"is  also  competent,"  to  quote  from  the  Report  of  Mr.  de  Lapradelle, 
"in  those  cases  in  which  treaties  make  it  the  court  of  appeal  against 
the  decisions  of  the  International  River  Commissions;  it  is  also  com- 
petent to  deal  with  the  cases  mentioned  in  the  provisions  dealing  with 
the  formation  of  an  International  Labor  Organization.  It  would  have 
been  easy  (Mr.  de  Lapradelle  continues)  for  the  Committee  to  enu- 
merate all  these  cases,  but  it  was  thought  unnecessary  to  indicate  them 
in  detail." 

Without  general  or  special  convention  the  jurisdiction  of  the  Per- 
manent Court  of  International  Justice  is  limited  to  disputes  of  a  justi- 
ciable nature  between  states. 

Article  32 

The  court  shall  be  open  of  right  to  the  states  mentioned  in 
the  Annex  to  the  Covenant,  and  to  such  others  as  shall  subse- 
quently enter  the  League  of  Nations. 

Other  states  may  have  access  to  it. 

The  conditions  under  which  the  court  shall  be  open  of  right 
or  accessible  to  states  which  are  not  members  of  the  League  of 
Nations  shall  be  determined  by  the  Council,  in  accordance  with 
Article  17  of  the  Covenant. 

As  far  as  the  Covenant  of  the  League  of  Nations  is  concerned, 
there  are  three  classes  of  states:  first,  the  signatories  of  the  various 
treaties  of  peace  putting  an  end  to  the  World  War,  the  names  of  which 
are  appended  to  the  Covenant  (these  are  called  the  original  members 
of  the  League) ;  secondly,  the  states  invited  to  adhere  to  the  League,  also 
included  in  the  annex  to  the  Covenant  (these  are  likewise  called 
original  members) ;  thirdly,  states  not  enumerated  in  the  annex  to  the 
Covenant  (these  are  Germany,  Austria,  Bulgaria,  Hungary,  Costa  Rica, 
Dominican  Republic,  Mexico,  Russia  and  Turkey,  and  such  other  states 
as  may  be  subsequently  recognized).  Article  32  of  the  project  opens 
the  court  as  of  right  to  the  states  mentioned  in  the  annex  to  the  Cove- 
nant, and  to  such  others  as  may  subsequently  enter  the   League   of 


96 

Nations.  That  is  to  say,  the  court  is  open  to  the  states  mentioned  in  the 
annex,  although  they  may  not  have  ratified  tlie  Covenant.  This  is  the 
situation  of  the  United  States.  It  is  also  open  to  members  of  the 
League;  that  is  to  say,  to  states  which  enter  the  League  although  they 
may  not  be  mentioned  in  the  annex  to  the  Covenant.  States  not  mem- 
bers of  the  League,  other  than  the  United  States,  are  only  to  have  access 
to  it. 

It  is  necessary  that  the  court  be  open  to  all  members  of  the  League, 
for  it  is  their  court.  It  is  desirable  that  it  be  accessible  to  all  other 
states,  inasmuch  as  the  reason  for  the  establishment  of  a  Permanent 
Court  of  International  Justice  is  that  all  disputes  of  a  justiciable  nature 
be  submitted  by  all  states  to  the  decision  of  the  court.  Notwithstand- 
ing the  desire  of  the  Committee  to  distinguish  between  the  United 
States  on  the  one  hand,  mentioned  in  the  annex  to  the  Covenant,  and 
the  other  states  not  so  mentioned,  which  may  wish  to  use  the  court, 
the  fact  is  that  they  are  alike  in  that  they  are  not  3^et  members  of  the 
League,  and  that  they  can  only  avail  themselves  of  the  court  "upon 
such  conditions  as  the  Council  may  deem  just,"  to  quote  the  language 
of  Article  17  of  the  Covenant. 

Article  33 

When  a  dispute  has  arisen  between  states,  and  it  has  been 
found  impossible  to  settle  it  by  diplomatic  means,  and  no  agree- 
ment has  been  made  to  choose  another  jurisdiction,  the  party 
complaining  may  bring  the  case  before  the  court.  The  court 
shall,  first  of  all,  decide  whether  the  preceding  conditions  have 
been  complied  with;  if  so,  it  shall  hear  and  determine  the  dis- 
pute according  to  the  terms  and  within  the  limits  of  the  next 
article. 

Inasmuch  as  the  court  is  not  a  substitute  for  diplomatic  negotia- 
tion, but  is  to  supplement  it  by  deciding  disputes  which  diplomacy  has 
been  unable  to  adjust  and  which  the  states  in  controversy  may  submit, 
it  necessarily  follows  that  diplomatic  means  shall  have  been  tried  and 
found  wanting.  Otherwise  the  court  would  be  a  rival,  instead  of  a 
successor. 

It  may  be  that  the  parties  in  dispute  have  agreed  to  submit  their 
differences  to  a  particular  forum.  In  such  a  case,  that  jurisdiction  is 
to  be  resorted  to.  If,  notwithstanding  the  previous  agreement,  the 
parties  prefer  the  court,  they  may  submit  the  case,  and  the  court  will 
assume  jurisdiction,  but  it  will  be  by  virtue  of  the  new,  and  in  spite  of 
the  old,  agreement. 


97 

Upon  the  presentation  of  a  case,  the  court  must  first  determine 
whether  these  conditions  precedent  have  been  complied  witli.  Article 
33  so  prescribes.  If  the  court  decide  that  these  two  conditions  have 
been  fulfilled,  it  would  immediately  find  itself  confronted  with  the 
further  question,  whether  it  had  jurisdiction  of  the  parties  and  the 
subject-matter  of  the  dispute. 

As  the  Permanent  Court  of  International  Justice  is  a  court  of  lim- 
ited jurisdiction,  it  naturally  follows  that  it  must,  itself,  determine  its 
power  to  hear  and  determine  a  cause,  even  though  the  parties  to  it 
should  not  contest  its  jurisdiction.  For  without  jurisdiction  its  action 
is  a  nullity,  and  its  judgment  void.^  What  is  this  jurisdiction  and  what 
are  its  limits?  This  is  the  question  with  which  Article  34  of  the  project 
deals. 

Article  34 

Between  states  which  are  members  of  the  League  of  Nations, 
the  court  shall  have  jurisdiction  (and  this  without  any  special 
convention  giving  it  jurisdiction)  to  hear  and  determine  cases  of 
a  legal  nature  concerning: 

(a)  The  interpretation  of  a  treaty; 

(b)  Any  (juestion  of  international  law; 

(c)  The  existence  of  any  fact  which,  if  established,  would 

constitute  a  breach  of  an  international  obligation; 

(d)  The  nature  or  extent  of  reparation  to  be  made  for  the 

breach  of  an  international  obligation; 

(e)  The  interpretation  of  a  sentence  passed  by  the  court. 

The  court  shall  also  take  cognizance  of  all  disputes  of  any 
kind  which  may  be  submitted  to  it  by  a  general  or  particular 
convention  between  the  parties. 

In  the  event  of  a  dispute  as  to  whether  a  certain  case  comes 
within  any  of  the  categories  above  mentioned,  the  matter  shall 
be  settled  by  the  decision  of  the  court. 

This  article  consists  of  four  parts,  each  of  which  is  of  fundamental 
importance:  first,  that  the  court  is  competent  to  hear  and  determine 


^  In  the  leading  case  of  The  State  of  Rhode  Island  v.  The  State  of  Massachu- 
setts (12  Peters,  G57,  720),  decided  in  1838,  Mr.  Justice  Baldwin,  speaking  for  the 
Supreme  Court  of  the  United  States,  said:  "But  as  this  Court  is  one  of  limited  and 
special  original  jurisdiction,  its  action  must  be  confined  to  the  particular  cases,  con- 
troversies, and  parties  over  wliicli  the  constitution  and  laws  have  authorized  it  to 
act;  any  proceeding  without  the  limits  prescribed,  is  coram  non  judice,  and  its  action 
a  nullity.  .  .  .  And  whether  the  want  or  excess  of  power  is  objected  bv  a  partv. 
or  is  apparent  to  the  Court,  it  must  surcease  its  action,  or  proceed  extra- iudicially." 
See,  also,  United  States  v.  State  of  Texas  (143  United  States  Reports, '(^21  0*2) 
decided  in  1802. 


98 

certain  cases  of  a  legal  nature  between  states  belonging  to  the  League 
of  Nations,  without  a  special  convention  or  agi'eement  to  that  effect; 
secondly,  that  the  cases  are  of  a  justiciable  nature,  involving  and  aris- 
ing under  one  or  the  other  of  the  five  specified  categories  of  jurisdic- 
tion; thirdly,  that  the  court  is  competent  to  hear  and  determine  all 
other  disputes  which  may  be  submitted  to  it  by  agreement  of  the  par- 
lies; fourthly,  that  the  court  shall  decide  whether  the  case  presented 
to  it  falls  within  the  above  categories.  Each  of  these  questions  will  be 
considered  somewhat  in  detail. 

With  but  one  dissenting  voice,  the  Committee  was  of  the  opinion 
that  a  state  belonging  to  the  League  of  Nations  should,  on  its  own  initi- 
ative, be  able  to  summon  another  state,  also  belonging  to  the  League,  be- 
fore the  Permanent  International  Court  of  Justice  to  litigate  a  judicial 
question  concerning  the  subjects  mentioned  in  Article  34. 

The  ground  upon  which  this  opinion  was  based  is  that  by  Article 
13  of  the  Covenant,  the  members  of  the  League  agree  "that  whenever 
any  dispute  shall  arise  between  them  which  they  recognize  to  be  suit- 
able for  submission  to  arbitration  and  which  cannot  be  satisfactorily 
settled  by  diplomacy,  they  will  submit  the  whole  subject-matter  to 
arbitration";  that  the  four  categories  of  disputes  specified  under  a,  h, 
c,  and  d,  "are  declared,"  by  Article  13,  "to  be  among  those  which  are 
generally  suitable  for  submission  to  arbitration";  that  the  interpreta- 
tion of  the  judgment  of  the  court  is  a  question  which  the  parties  to  the 
Second  Hague  Conference  had  agreed  in  case  of  difference  to  submit 
to  the  tribunal  deciding  it.  In  the  opinion  of  the  majority  of  the  Com- 
mittee, the  members  of  the  League  between  and  among  themselves  are 
either  bound  by  their  acceptance  of  Articles  13  and  14  of  the  Covenant 
to  submit  disputes  of  this  category  to  arbitration  (used  in  an  untechnical 
sense  as  including  judicial  settlement),  or  by  agreeing  to  the  present 
article,  which  is  a  general  consent  to  suit  on  the  part  of  the  States  accept- 
ing it,  so  that  a  separate  and  special  convention  between  the  parties  to 
this  effect  is  unnecessary.  On  this  theory  the  parties  would  not  need  to 
consent  to  submit  a  specific  dispute,  as  each  would  be  bound  to  do  so. 
Therefore  it  would  socm  to  follow  that  one  of  the  parties  could,  in  the 
absence  of  a  separate  and  special  convention  or  of  special  consent,  lay 
the  case  before  the  court,  which  is  competent  to  receive  it,  and  that  the 
court,  being  competent,  could  not  only  entertain  the  case,  but  could,  at 
the  request  of  the  complaining  stale,  proceed  to  decide  it  in  the  absence 
of  the  defendant  stale  invited  to  appear  before  llie  court. 

The  dissenting  member  of  the  Committee,  Mr.  Adatci,  of  Japan, 
admitted  that  the  court  was  competent  to  accept  and  to  decide  disputes 


99 

of  the  above  categories,  but  he  maintained  that  it  could  only  be  set  in 
motion  in  accordance  with  Article  14  of  the  Covenant,  which  provided 
in  express  terms,  that  "The  court  shall  be  competent  to  hear  and  de- 
termine any  dispute  of  an  international  character  which  the  parties 
thereto  submit  to  it.'"^ 

The  difference  between  these  two  views  is  the  difference  between 
a  court  of  justice  and  a  court  of  arbitration, — the  court  of  justice  not 
requiring  consent  of  the  parties  to  the  suit,  inasmuch  as  they  are  bound 
to  submit  to  the  court  within  the  limits  of  its  jurisdiction;  the  court  of 
arbitration,  on  the  other  hand,  requiring  an  agreement  of  the  parties 
upon  the  specific  question  to  be  submitted  to  the  court.  Up  to  this 
point,  the  essential  difference  between  the  Permanent  Court  of  Arbi- 
tration of  1899  and  the  Permanent  Court  of  International  Justice  of 
1920,  is  one  of  the  organization  and  composition  of  the  court.  A  change 
in  the  categories  of  disputes  declared  to  be  subject  to  arbitration  or 
judicial  decision,  by  special  convention,  would  not  improve  matters, 
inasmuch  as  nations  are  always  at  liberty  to  submit  disputes  of  any 
kind  to  arbitration  or  judicial  decision  by  special  agreement.  The  im- 
portant point  is,  that  they  oblige  themselves  to  submit  a  small  part  of 
the  large  field,  reserving  the  right  by  future  agreements  to  submit  ques- 
tions which  are  not  included  within  this  limited  and  compulsory  field. 
The  unwillingness  to  submit  to  judicial  decision  disputes  falling  within 
the  limited  field,  is  also  an  unwillingness  to  submit  these  very  disputes 
to  arbitration.  The  objection  is  not  one  of  form,  it  is  one  of  substance. 
It  is  a  rejection  of  the  principle  that  disputes  of  a  recognized  justiciable 
nature  should  be  submitted  either  to  judicial  or  arbitral  decision;  a 
refusal  to  have  such  international  dispute  decided  by  principles  of 
justice  known  in  advance,  by  any  agency  created  and  existing  in  ad- 
vance, unless  it  should  please  the  passing  fancy  of  the  parties  in  con- 
troversy to  do  so. 

With  the  exception  of  one  of  its  members,  the  Committee  was 
willing  to  recommend  the  acceptance  of  this  obligation;  some  believing 
that  it  already  existed  by  acceptance  of  the  Covenant,  and  others  be- 
lieving that  the  approval  of  this  article  of  the  project  bj'  the  Council 


^  Mr.  Ricci-Busatti  voted  against  Articles  34  and  35,  as  he  preferred  tlie  volun- 
tary jurisdiction  of  a  tribunal  of  arbitration  to  the  obliiratory  jurisdiction  of  a  court 
of  justice.  He  voted,  however,  on  July  '■2'2d  for  the  ])roject  as  a  whole  without  a 
formal  reserve  as  to  these  articles.  By  so  doing  he  sacrificed  his  preference  to  the 
judgment  of  the  majority.  It  is  probably  fair  to  consider  him  as  abstaining  instead 
of  recording  him  as  in  favor  or  as  finally  opposed  to  these  two  articles  of  the  project. 


100 

and  Assembly  would,  in  eifect,  be  a  general  or  special  convention  of 
the  members  of  the  League,  confirming  or  creating  the  jurisdiction  in 
question. 

Mr.  Adatci,  however,  stood  firm  and  at  the  moment  of  the  adoption 
of  the  project  as  a  whole  on  July  22d  he  formally  recorded  his  "dissent 
from  the  provisions  of  Articles  33  and  34,  which  deal  with  the  question 
of  unilateral  action  before  a  compulsory  international  jurisdiction." 
In  so  doing  he  expressed  the  hope  that  compulsory  jurisdiction  would 
be  accepted  in  the  very  near  future,  but  in  view  of  the  history  and  ex- 
press wording  of  Article  14  of  the  Covenant,  which  conditioned  a  re- 
sort to  the  court  upon  the  agreement  of  the  parties,  he  felt  himself 
bound  to  reject  Articles  33  and  34  as  beyond  the  mandate  under  which 
he  was  acting. 

In  the  opinion  of  the  majority,  therefore,  the  approval  of  this  arti- 
cle of  the  project  would  dispense  with  a  special  agreement  or  com- 
promis,  and  would  enable  one  or  other  of  the  parties  to  a  dispute  of 
the  kind  specified  in  the  article,  to  lay  it  before  the  court,  to  be  decided 
by  the  judges  under  a  sense  of  judicial  responsibility  and  in  accordance 
with  the  principles  of  law  held  to  be  applicable,  in  the  presence  or 
absence  of  the  other  party  to  the  controversy. 

Lord  Phillimore  and  Mr.  Root  were  much  opposed  to  the  idea  of 
a  special  agreement  or  compromis,  in  vogue  in  arbitration  but  alien 
to  judicial  procedure.  The  requirement  that  the  parties  in  controversy 
agree  upon  the  issue  or  issues  to  be  submitted  to  the  decision  of  the 
court  is  to  ask  that  two  parties  in  disagreement  agree  on  the  very  point 
upon  which  they  are  at  odds.  Lord  Phillimore  aptly  called  attention 
to  the  fisheries  dispute  between  Great  Britain  and  the  United  States, 
in  which  those  two  countries  were  unable  to  agree  upon  the  points  to 
be  arbitrated.  Therefore,  in  the  special  agreement  of  January  27,  1901, 
each  country  stated  its  contentions  and  the  special  tribunal  of  arbitra- 
tion at  Tlie  Hague  decided  the  controversy  upon  the  contentions  of  the 
parties  separately  stated  in  the  compromis.  Mr.  Root  w^as  then  Secre- 
tary of  State  and  negotiated  the  agreement  on  behalf  of  the  United 
States.  Because  of  this  experience  and  subsequent  reflection  he  would 
reject  the  special  agreement  required  in  arbitration  and  allow  plaintiff 
and  defendant  to  state  their  respective  cases  separately  as  in  judicial 
procedure.  "Instead  of  requiring  the  parties  to  agree  upon  the  ques- 
tion to  be  determined,  the  party  seeking  a  decision  against  the  other 
should  state  its  case  itself,  in  its  om'U  way;  and  the  other  party  should 
state  its  counter-case  itself,  and  in  its  own  wav;  and  let  the  court  decide. 


101 

instead  of  requiring  the  parties  to  agree  before  liand  upon  the  question 
which  is  to  be  decided."^ 

The  competence  of  the  court  under  this  article  would  be  \ery 
broad,  but  it  would  not  be  without  precedent.  The  Pacific  Settlement 
Convention  of  1899,  negotiated  and  ratified  by  twenty-six  nations,  in- 
cluding therein  Japan,  stated  that: 

In  questions  of  a  legal  nature,  and  especially  in  the  interpretation 
or  application  of  international  conventions,  arbitration  is  recognized 
by  the  signatory  Powers  as  the  most  effective,  and  at  the  same  time 
the  most  equitable,  means  of  settling  disputes  which  diplomacy  has 
failed  to  settle.^ 

And  in  1907,  the  forty-four  Powders  participating  in  the  labors  of  ^he 
Second  Hague  Conference  were  unanimous — 

1.  In  admitting  the  principle  of  compulsory  arbitration. 

2.  In  declaring  that  certain  disputes,  in  particular  those  relating  to 
the  interpretation  and  application  of  the  provisions  of  international 
agreements,  may  be  submitted  to  compulsoiy  arbitration  without  any 
restriction.^ 

The  obligation  to  submit  a  dispute  involving  any  question  of  inter- 
national law  is  reasonable  in  that  international  law  is  not  the  law  of 
any  one  nation,  but  is  the  law  of  e\ery  nation.  If  authority  be  needed, 
that  of  Daniel  Webster,  speaking  as  Secretary  of  State,  is  sufficient  for 
the  United  States,  and  the  statement  applies  not  merely  to  the  United 
States,  but  to  every  nation,  j'oung  or  old,  large  or  small : 

Ever}^  nation,  on  being  received,  at  her  own  request,  into  the  circle 
of  civilized  governments,  must  understand  that  she  not  only  attains 
rights  of  sovereignty  and  the  dignity  of  national  character,  but  that 
she  binds  herself  also  to  the  strict  and  faithful  observance  of  all  those 
principles,  laws,  and  usages  which  have  obtained  currency  among  civil- 
ized states,  and  which  have  for  their  object  the  mitigation  of  the  miser- 
ies of  war.^° 

The  only  objection  on  the  part  of  civilized  governments  to  submit 


"^  Proces-verbal,  session  of  June  29,  1920. 

8  Article   10. 

®  Final  Act  of  tlie  Second  Hague  Peace  Conference  of  1907. 

^°  Mr.  Webster.  Secretary  of  State,  to  Mr.  Thoni])son.  Minister  to  Mexico. 
April  15.  1812.  llie  Works  of  Dnvit-I  Webster,  Vol.  VI  (1851),  p.  437;  John 
Bassett  Moore,  A  Digest  of  International  Law  (lOOfi).  Vol.  I.  p.  5. 


102 

their  disputes  arising  from  "those  principles,  hiws,  and  usages  which 
have  obtained  currency  among  civilized  states"  should  be  to  the  ade- 
quacy of  the  court  by  which  disputes  of  the  kind  specified  are  to  be  de- 
cided. If  this  tribunal  is  so  constituted  as  to  administer  justice  impar- 
tially, according  to  the  rules  of  law,  there  should  not,  it  is  believed,  be 
an  objection  on  the  part  of  "civilized  governments,"  to  use  Daniel  Web- 
ster's phrase;  certainly  the  objection  should  not  come  from  the  United 
States,  whose  Supreme  Court  is  not  only  a  prototype,  but  is  in  fact  a 
Permanent  Court  of  International  Justice,  administering  in  regular 
course  the  law  of  nations/^ 

In  regard  to  the  existence  of  a  fact  which,  if  established,  would 
constitute  a  breach  of  an  international  obligation,  it  is  sufficient  to  say 
that,  in  the  experience  of  mankind,  courts  are  the  best  agencies  and 
instrumentalities  for  determining  facts  which,  if  established,  would  con- 
stitute a  breach  of  an  obligation,  inasmuch  as  every  civilized  nation 
has  created  courts  to  establish  the  existence  of  facts  constituting  a 
breach  of  an  obligation  and  to  repair  the  breach  according  to  the  prin- 
ciples of  law  found  applicable.  If  each  nation  has  created  a  national 
court  to  find  not  merely  facts  which  constitute  the  breach  of  an  obliga- 
tion, but  to  decide  the  nature  or  extent  of  reparation  to  be  made,  all 
nations  can  create  a  permanent  court  of  international  justice  for  the 
breach  of  an  obligation  to  which  the  nations  themselves  are  parties. 

Good  faith  requires  the  performance  of  the  award  of  an  arbitral 
tribunal  or  the  judgment  of  a  court  of  justice.  The  twenty-six  nations 
taking  part  in  the  First  Hague  Conference  declared  that  "the  arbitration 
convention  implies  the  engagement  to  submit  loyally  to  the  award,"  ^^ 
and  the  forty-four  nations  represented  in  the  Second  Hague  Conference 
likewise  declared  that  "recourse  to  arbitration  implies  an  engagment  to 
submit  in  good  faith  to  the  award."^^  The  award,  however,  may  be 
ambiguous,  and  each  party  may  in  good  faith  interpret  it  differently. 
Foreseeing  the  possibility  of  this  state  of  afi\urs,  and  to  put  the  mean- 
ing of  the  award  and  its  execution  beyond  question,  the  forty-four 
nations  represented  in  the  Second  Hague  Conference  declared  that: 
"Any  dispute  arising  between  the  parties  as  to  the  interpretation  and 


^^  "International  law  is  part  of  our  law,  and  must  be  ascertained  and  adminis- 
tered by  the  courts  of  justice  of  appropriate  jurisdiction,  as  often  as  questions  of 
right  depending  upon  it  are  duly  presented  for  their  determination." — The  Paquete 
Ilabana,  decided  in  1800  (175  United  States  Reports,  (iTT,  TOO). 

^2  Pacific  Settlement  Convention  of  1899,  Article  18. 

^^  Pacific   Settlement   Convention,  revision   of    1007,  Article  37. 


103 

execution  of  the  award  shall,  in  the  absence  of  an  agreement  to  the 
contrary,  be  submitted  to  the  tribunal  Avhich  pronounced  it." 

This  enumeration  of  the  disputes  to  be  submitted  to  the  court,  as 
Mr.  Root  said  to  the  Advisory  Committee  at  its  session  of  June  26th, 
"was  not  conceived  in  the  inner  consciousness  of  the  gentlemen  in 
Paris"  who  drafted  the  Covenant.  "It  was  a  statement,"  he  continued, 
and  he  knew,  for  he  himself  prepared  the  draft  which  was  embodied 
in  Article  13  of  that  document,  "that  had  resulted  from  long  discussion 
and  conference  among  the  international  jurists  of  many  countries."^^ 


^*  Pacific   Settlement  Convention,  revision  of   1007,  Article   82. 

^^  The  original  draft  prepared  by  Mr.  Root  was  the  first  of  a  series  of  amend- 
ments to  the  original  draft  of  the  Covenant  for  the  League  of  Nations  proposed  by 
him  in  a  letter  of  March  29,  1919,  to  Mr.  Will  H.  Hays  (American  Journal  of  Inter- 
national Law,  Vol.  13,  No.  3,  p.  580).     It  was  worded  as  follows: 

The  high  contracting  powers  agree  to  refer  to  the  existing  Permanent 
Court  of  Arbitration  at  The  Hague,  or  to  the  Court  of  Arbitral  Justice  pro- 
posed at  the  Second  Hague  Conference  when  established,  or  to  some  other 
Arbitral  Tribunal,  all  disputes  between  them  (including  those  affecting 
•honor  and  vital  interests)  which  are  of  a  justiciable  character,  and  which  the 
powers  concerned  have  failed  to  settle  by  diplomatic  methods.  The  powers 
so  referring  to  arbitration  agree  to  accept  and  give  effect  to  the  award  of  the 
Tribunal. 

Disputes  of  a  justiciable  character  are  defined  as  disputes  as  to  the  inter- 
pretation of  a  treaty,  as  to  any  question  of  international  law,  as  to  the  exist- 
ence of  any  fact  which  if  established  would  constitute  a  breach  of  any  inter- 
national obligation,  or  as  to  the  nature  and  extent  of  the  reparation  to  be 
made  for  any  such  breach. 

Any  question  which  may  arise  as  to  whether  a  dispute  is  of  a  justiciable 
character  is  to  be  referred  for  decision  to  the  Court  of  Arbitral  Justice  when 
constituted,  or,  until  it  is  constituted,  to  the  existing  Permanent  Court  of 
Arbitration  at  The  Hague  {ibid.,  p.  504). 

The  channel  through  which  Mr.  Root's  proposed  amendments  to  the  Covenant 
reached  the  Peace  Conference  at  Paris  was  thus  explained  by  him  at  the  meeting 
of  the  Executive  Council  of  the  American  Societv  of  International  Law,  on  April 
17,  1010:  * 

I  Avrote  a  letter  some  time  ago  on  the  general  subject  to  Mr.  Hays,  and 
proposed  half  a  dozen  amendments.  The  State  Department  asked  for  those 
amendments,  and  tliey  were  furnished  to  it  some  time  before  the  letter  was 
sent.  The  Department  cabled  the  amendments  over  to  Mr.  Lansing  in  Paris, 
and  they  were  before  the  commission  that  was  revising  the  Covenant  {Pro- 
ceedinf/s  of  the  American  Society  of  International  Law,  1018-1019,  p.   50). 

Mr.  Root  on  the  same  occasion  thus  explained  tlie  origin  of  the  amendment 
in  question: 


104 

The  majority  of  the  Committee  regarded  the  enmneration  of  dis- 
putes to  be  submitted  to  the  court  as  a  first  step.  But  liow  is  the  juris- 
diction of  the  court  to  be  extended?  This  involves  the  further  ques- 
tion, How  are  questions  which  may  now  be  regarded  as  political  ques- 
tions to  become  legal,  judicial  or  justiciable  questions? — to  use  the  three 
terms  commonly  employed  in  this  connection.  The  Committee,  uncon- 
sciously no  doubt,  adopted  the  method  defined  and  applied  by  the  Su- 
preme Court  of  the  United  Stales.  "The  court,"  said  the  Committee, 
"shall  also  take  cognizance  of  all  disputes  of  any  kind  which  may  be 
submitted  to  it  by  a  general  or  particular  convention  between  the  par- 
ties." The  Supreme  Court,  in  a  bitterly  contested  suit  between  the 
States  of  Rhode  Island  and  Massachusetts,  held  that  a  political  dispute 
becomes  a  judicial  question  by  the  agreement  of  the  parties  to  submit 
the  dispute  in  question,  and  its  actual  submission,  to  a  court  of  justice. 
Thus,  Mr.  Justice  Baldwin  said : 

The  founders  of  our  government  could  not  but  know,  what  has 
ever  been,  and  is,  familiar  to  every  statesman  and  jurist,  that  all  con- 
troversies between  nations,  are,  in  this  sense,  political  and  not  judicial, 
as  none  but  the  sovereign  can  settle  them.  .  .  .  None  can  be  settled 
without  war  or  treaty,  which  is  by  political  power;  but  under  the  old 
and  new  confederacy,  they  could  and  can  be  settled  by  a  court  con- 
stituted by  themselves,  as  their  own  substitutes,  authorized  to  do  that 
for  states,  which  states  alone  could  do  before.  We  are  thus  pointed  to 
the  true  boundary  line  between  political  and  judicial  power,  and  ques- 
tions. A  sovereign  decides  by  his  own  will,  which  is  the  supreme  law 
within  his  own  boundary  (6>et.  714;  9  Ibid.  748);  a  court,  or  judge, 
decides  according  to  the^  law  prescribed  by  the  sovereign  power,  and 


That  amendment  relating  to  arbitration  is  in  the  language  of  the  British 
group,  of  which  Mr.  Bryce  is  the  head.  They  have  been  working  at  it  for 
three  or  four  years,  and  that  definition  is  what  their  work  finally  resulted  in. 
It  recognizes  the  Hague  Court  and  defines  justiciable  questions.  In  framing 
the  amendment  I  took  their  language,  instead  of  the  language  of  the  League 
to  Enforce  Peace,  for  the  reason  that  the  former  defines  justiciable  questions, 
and  the  latter  does  not,  and  I  had  found  great  difficulty  in  an  agreement  to 
submit  to  any  Continental  tribunal — any  tribunal  selected  from  the  world 
at  large — the  question  of  its  own  jurisdiction,  without  any  rule  to  apply  more 
definite  than  the  words  "justiciable  questions."  .  .  .  But  the  Bryce 
group  defined  disputes  of  a  justiciable  character  to  be  disputes  as  to  the 
interpretation  of  a  treaty,  as  to  any  question  of  international  law.  as  to  the 
existence  of  any  fact  which  if  established  would  constitute  a  breach  of  any 
international  obligation,  or  as  to  the  nature  and  extent  of  the  reparation  tc 
be  made  for  any  such  breach.  That  is  pretty  reasonably  clear-cut  (Prn- 
cpcdivcjs  of  the  American  Soricfi/  of  Jntervat'iondJ   La-iC,   1018-1019,  p.   n2). 


105 

that  law  is  the  rule  for  judgment.  The  submission  by  the  sovereigns, 
or  states,  to  a  court  of  law  or  e(iuity,  of  a  controversy  between  them, 
without  prescribing  any  rule  of  decision,  gives  power  to  decide  accord- 
ing to  the  appropriate  law  of  the  case  (11  Ves.  294) ;  which  depends  on 
the  subject-matter,  the  source  and  nature  of  the  claims  of  the  parties, 
and  the  law  which  governs  them.  From  the  time  of  such  submission, 
the  question  ceases  to  be  a  political  one,  to  be  decided  by  the  sic  volo, 
sic  jubeo,  of  political  power;  it  comes  to  the  court  to  be  decided  by  its 
judgment,  legal  discretion  and  solemn  consideration  of  the  rules  of 
law  appropriate  to  its  nature  as  a  judicial  question,  depending  on  the 
exercise  of  judicial  power;  as  it  is  bound  to  act  by  known  and  settled 
principles  of  national  or  municipal  jurisprudence,  as  the  case  requires. 

It  has  never  been  contended  that  prize  courts  of  admiralty  juris- 
diction, or  questions  before  them,  are  not  strictly  judicial;  they  decide 
on  questions  of  war  and  peace,  the  law  of  nations,  treaties,  and  the 
municipal  laws  of  the  capturing  nation,  by  which  alone  they  are  con- 
stituted; a  fortiori,  if  such  courts  were  constituted  by  a  solemn  treaty 
between  the  state  under  whose  authority  the  capture  was  made,  and 
the  state  whose  citizens  or  subjects  suffer  by  the  capture.  All  nations 
submit  to  the  jurisdiction  of  such  courts  over  their  subjects,  and  hold 
their  final  decrees  conclusive  on  rights  of  property.     6  Cranch  284-5. 

These  considerations  lead  to  the  definition  of  political  and  judicial 
power  and  questions;  the  former  is  that  which  a  sovereign  or  state 
exerts  by  his  or  its  own  authority,  as  reprisal  and  confiscation  (3  Ves. 
429) ;  the  latter  is  that  which  is  granted  to  a  court  or  judicial  tribunal. 
So  of  controversies  between  states;  they  are  in  their  nature  political, 
when  the  sovereign  or  state  reserves  to  itself  the  right  of  deciding  on 
it;  makes  it  the  "subject  of  a  treaty,  to  be  settled  as  between  states  in- 
dependent," or  "the  foundation  of  representations  from  state  to  state." 
This  is  political  equity,  to  be  adjudged  by  the  parties  themselves,  as 
contradistinguished  from  judicial  equity,  administered  by  a  court  of 
justice,  decreeing  the  cquum  et  bonum  of  the  case,  let  who  or  what  be 
the  parties  before  them.^^ 

Finally,  Mr.  Root  made  the  following  suggestion  regarding  the  de- 
velopment of  the  jurisdiction  of  the  court: 

I  think  we  should  endeavor  to  take  the  further  step  of  marking  the 
distinction  which  is  not  considered  or  expressed  in  the  provisions  re- 
garding the  Council — the  further  step  of  marking  the  distinction  be- 
tween questions  of  right  and  (juestions  of  policy,  and,  within  these 
narrow  limits,  of  calling  upon  the  nations  of  the  earth  to  agree:  that 
the  questions  of  right  based  on  contract  or  positive  law  shall  go  to  a 
court  which  shall  decide  judicinlly;  and  I  think  we  can  accompany  that 
provision  l)y  a  strong  recommendation  to  the  Council  and  the  Assembly 
that  with  the  least  possible  delay  the  process  which  began  with  the 
first,  continued  with  tlie  second,  and  was  about  to  be  further  continued 


12  Peters.  C,57.  7"G.     Decided  in  IS.'^S. 


106 

in  the  third  Hague  Conference  shall  be  recommenced;  a  recommenda- 
tion that  with  the  least  practicable  delay  another  general  Conference 
be  called  for  the  pm-pose  of  reconsidering  the  principles  of  interna- 
tional law  of  considering  and  declaring  what  is  left  of  them  since  the 
war — of  the  rules  formerly  accepted  which  have  been  weakened,  so 
that  the  world  may  know  what  its  law  is,  and  for  the  purpose  of  ex- 
tending agreement  upon  the  rules  of  law. 

If  that  could  be  done  and  the  rule  could  be  adopted  that  such  a 
Conference  shall  take  place  at  stated  intervals,  then  our  court,  having 
jurisdiction  over  questions  of  positive  law  as  distinguished  from  vague 
considerations  of  justice,  will,  year  after  year  and  generation  after 
generation,  be  exercising  continually  enlarging  jurisdiction,  each  new 
agreement  upon  the  rules  of  law  adding  to  the  jurisdiction  of  the  court, 
and  we  will  have  begun  an  institution  which  for  centuries  to  come  will 
become  of  constantly  increasing  value.  You  will  find  in  the  decisions 
of  such  a  court  charged  with  the  maintenance  of  law  a  check  upon  the 
undue  exercise  of  power — political  power,  unregulated  by  law,  with  no 
law  that  it  is  bound  to  respect,  a  power  which  makes  it  especially  im- 
portant that  the  law  shall  be  developed  and  respected  and  made  the 
object  to  which  the  thoughts  of  man  shall  turn  for  a  guide  for  their 
conduct. 

If  the  government  of  Japan  should  share  the  views  of  the  Japanese 
member,  or  if  the  Italian  government  should  share  the  views  of  its 
member,  or  if  other  governments  should  incline  to  these  views,  the 
Powers  wishing  to  vest  the  Court  with  jurisdiction  without  a  special 
agreement  or  compromis  in  each  case,  need  only  negotiate  a  conven- 
tion to  this  clTect  with  those  Powers  to  which  they  may  be  willing  to 
accord  this  right. 

If  the  nations  reject  this  provision  of  the  project,  the  members  of 
the  Advisory  Committee  may  nevertheless  have  the  consolation  that 
their  actions  square  with  the  advice  of  General  Washington,  who  said  of 
the  acceptance  or  rejection  of  the  Constitution  of  the  United  States: 

It  is  too  probable  that  no  plan  we  propose  will  be  adopted.  Per- 
haps another  dreadful  conflict  is  to  be  sustained.  If  to  please  the  people, 
we  offer  what  we  ourselves  disapprove,  how  can  we  afterwards  defend 
our  work?  Let  us  raise  a  standard  to  which  the  wise  and  the  honest 
can  repair.     The  event  is  in  the  hand  of  God.'" 

Article  35 

The  court  shall,  within  the  limits  of  its  jurisdiction  as  defined 
in  Article  34,  apply  in  the  order  following: 


^^  Gouverneur  Morris,  An  Oration  upon  the  Death  of  General  Washington, 
December  31,  1799.  Max  Farrand.  The  Records  of  the  Federal  Convention  of  1787 
(1911),  Vol.  Ill,  p.  382. 


107 

(1)  International  conventions,  whether  general  or  particular, 
establishing  rules  expressly  recognized  by  the  contesting 
states; 

(2)  International  custom,  as  evidence  of  a  general  practice, 
which  is  accepted  as  law; 

(3)  The  general  principles  of  law  recognized  by  civilized  na- 

tions; 

(4)  Judicial  decisions  and  the  teachings  of  the  most  highly 
qualified  publicists  of  the  various  nations,  as  subsidiary 
means  for  the  determination  of  rules  of  law. 

Recognizing  that  a  step  was  being  taken  in  advance,  although  that 
step  might  not  be  a  very  great  one,  the  Committee  was  anxious  to  quiet 
the  apprehensions  of  the  parties  that  the  judges  might  make  an  undue 
use  of  their  power  and,  by  the  interpretation  of  their  jurisdiction,  assume 
the  role  of  legislator.    This  they  did  by  Article  35. 

There  is  no  difficulty  with  the  first  section  of  this  article.  An  in- 
ternational convention  only  binds  the  parties  to  it,  and  it  is  only  law 
for  them.  Hence,  the  provisions  of  this  section  bind  onlj'  the  states  in 
controversy  which  may  be  parties  to  such  a  law-making  convention. 

Sections  2,  3  and  4  of  the  article  are  not  only  acceptable  in  themselves 
but  seem  to  be  in  accordance  with  the  decisions  of  English  and  Ameri- 
can courts  of  justice,  both  as  to  the  law  and  as  to  the  rules  of  inter- 
pretation. 

First  as  to  English  precedent. 

Lord  Chancellor  Talbot  is  reported  by  Lord  Mansfield  to  have  held 
in  the  case  of  Biivot  v.  Barhiit,  decided  in  1736,  "That  the  law  of  na- 
tions, in  its  full  extent  was  part  of  the  law  of  England,"  and  "was  to 
be  collected  from  the  practice  of  different  nations,  and  the  authority 
of  writers."  ^' 

The  Law  Officers  of  the  Crown,  including  the  great  Lord  Mansfield, 
then  Solicitor  General,  referred  in  their  Report,  dated  January  8,  1753, 
on  the  Silesian  Loan,  to  "The  Law  of  Nations,  founded  upon  Justice, 
Equity,  Convenience,  and  the  Reason  of  the  Thing,  and  confirmed  by 
long  Usage."  ^^ 

Lord  Chief  Justice  Mansfield  declared  in  Heathfield  v.  Chilton,  de- 
cided in  1767,  that,  "The  privileges  of  public  ministers  and  their  retinue 
depend  upon  the  law  of  nations;  wliich  is  part  of  the  common  law  of 
England.  And  the  Act  of  Parliament  of  7  Ann.  C.  12  did  not  intend  to 
alter  nor  can  alter  the  law  of  nations."  ^^ 


^'^  Triquet  v.  Bath   (8  Burrow,  1  ITS,  ItSO-Sl),  decided  in  17(U. 

^*  Sir  Ernest  Satow,  The  Silesian  Loan  and  Frederick  the  Great  (1915),  p.  82. 

^^  4  Burrow.  2010. 


108 

Sir  John  Stuart,  Vice  Chancellor,  held  in  The  Emperor  of  Austria 
V.  Day  and  Kossuth,  decided  in  1861,  that: 

A  public  right,  recognized  by  the  law  of  nations,  is  a  legal  right; 
because  the  law  of  nations  is  part  of  the  common  law  of  England. 

These  propositions  are  supported  by  unquestionable  authority.  In 
the  modern  version  of  Blackstone's  Commentaries  (4  Steph.  Com.  282) 
it  is  laid  down  (and  it  has  so  always  been  held  in  our  Courts)  that  the 
law  of  nations,  wherever  any  question  arises,  which  is  properly  the 
object  of  its  jurisdiction,  is  adopted  in  its  full  extent  by  the  common 
law  of  England,  and  held  to  be  a  part  of  the  law  of  the  land.  Acts  of 
Parliament,  which  have  been  from  time  to  time  made  to  enforce  this 
universal  law,  or  to  facilitate  the  execution  of  its  decisions,  are  not 
considered  as  introductive  of  any  new  rule,  but  merely  declaratory  of 
the  old  fundamental  constitution  of  the  kingdom,  without  which  it  must 
cease  to  be  part  of  the  civilized  world."° 

Lord  Chief  Justice  Alverstone,  in  West  Rand  Central  Gold  Mining 
Company  v.  The  King,  decided  in  1905,  said  on  behalf  of  a  unanimous 
court : 

The  second  proposition  urged  by  Lord  Robert  Cecil,  that  interna- 
tional law  forms  part  of  the  law  of  England,  requires  a  word  of  ex- 
planation and  comment.  It  is  quite  true  that  whatever  has  received 
the  common  consent  of  civilized  nations  must  have  received  the  assent 
of  our  country,  and  that  to  which  we  have  assented  along  with  other 
nations  in  general  may  properly  be  called  international  law,  and  as 
such  will  be  acknowledged  and  applied  by  our  municipal  tribunals 
when  legitimate  occasion  arises  for  those  tribunals  to  decide  questions 
to  which  doctrines  of  international  law  may  be  relevant.  But  any  doc- 
trine so  invoked  must  be  one  really  accepted  as  binding  between  na- 
tions, and  the  international  law  sought  to  be  applied  must,  like  any- 
thing else,  be  proved  by  satisfactory  evidence,  which  must  shew  either 
that  the  particular  proposition  put  forward  has  been  recognised  and 
acted  upon  by  our  own  country,  or  that  it  is  of  such  a  nature,  and  has 
been  so  widely  and  generally  accepted,  that  it  can  hardly  be  supposed 
that  any  civilized  State  would  repudiate  it.  The  mere  opinions  of 
jurists,  however  eminent  or  learned,  that  it  ought  to  be  so  recognised, 
are  not  in  themselves  sufTicient.  They  must  have  received  the  express 
sanction  of  international  agreement,  or  gradually  have  grown  to  be 
part  of  international  law  by  their  frequent  practical  recognition  in 
dealings  between  various  nations.  We  adopt  the  language  used  by 
Lord  Russell  of  Killowen  in  his  address  at  Saratoga  in  1896  on  the  sub- 
ject of  international  law  and  arbitration  :  "What,  then,  is  international 
law?  I  know  no  better  definition  of  it  than  that  it  is  the  sum  of  the 
rules  or  usages  which  civilized  States  have  agreed  shall  be  binding 
upon  them  in  their  dealings  with  one  anolhor."     In  our  judgment,  the 

-"  2  Ciiiford.  Casr.s  adjudf/rd  in  the  Tfir/h  Court  of  Chancery,  pp.  028,  r,78-C.79. 


109 

second  proposition  for  which  Lord  Robert  Cecil  contended  in  his  argu- 
ment before  us  ought  to  be  treated  as  correct  only  if  the  term  "inter- 
national law"  is  understood  in  the  sense,  and  subject  to  the  limitations 
of  application,  which  we  have  explained.  The  authorities  which  he 
cited  in  support  of  the  proposition  are  entirely  in  accord  with  and,  in- 
deed, well  illustrate  our  judgment  upon  this  branch  of  the  arguments 
advanced  on  behalf  of  the  suppliants;  for  instance,  Barbiiit's  Case  [Cas. 
t.  Tal.  281],  Triquet  v.  Bath  [3  Burr.  1478],  and  Heath  field  v.  Chilton 
[4  Burr.  2016]  are  cases  in  which  the  Courts  of  law  have  recognised 
and  have  given  effect  to  the  privilege  of  ambassadors  as  established 
by  international  law.  But  the  expressions  used  by  Lord  Mansfield  when 
dealing  with  the  particular  and  recognised  rule  of  international  law  on 
this  subject,  that  the  law  of  nations  forms  part  of  the  law  of  England, 
ought  not  to  be  construed  so  as  to  include  as  part  of  the  law  of  England 
opinions  of  text-writers  upon  a  question  as  to  which  there  is  no  evi- 
dence that  Great  Britain  has  ever  assented,  and  a  fortiori  if  the^^  are 
contrary  to  the  principles  of  her  laws  as  declared  by  her  Courts.^^ 

Passing  from  English  to  American  precedent. 

In  1784,  Mr.  Chief  Justice  McKean,  of  Pennsylvania,  held  in  the 
case  of  Respublica  v.  De  Longchamps,  that  the  Secretary  of  the  French 
Legation  was  entitled  to  all  the  immunities  of  a  minister.  In  sentenc- 
ing the  defendant,  who  had  been  found  guilty  of  the  offenses  with 
which  he  was  charged.  Chief  Justice  McKean  said: 

The  first  crime  in  the  indictment  is  an  infraction  of  the  law  of 
Nations.  This  law,  in  its  full  extent,  is  part  of  the  law  of  this  State, 
and  is  to  be  collected  from  the  practice  of  different  Nations,  and  the 
authority  of  writers. 

The  person  of  a  public  minister  is  sacred  and  inviolable.  Who- 
ever offers  any  violence  to  him,  not  only  affronts  the  Sovereign  he  rep- 
resents, but  also  hurts  the  common  safety  and  well-being  of  nations; — 
he  is  guilty  of  a  crime  against  the  whole  world. -- 

In  1796,  Mr.  Justice  Chase,  of  the  Supreme  Court  of  the  United 
States,  said,  in  Ware  v.  Hijlton: 

The  law  of  nations  may  be  considered  of  three  kinds,  to  wit,  gen- 
eral, conventional,  or  cnstomary.  The  first  is  universal,  or  established 
by  the  general  consent  of  mankind,  and  binds  all  nations.  Tlie  second 
is  founded  on  e.vpress  consent,  and  is  not  universal,  and  only  binds 
those  nations  that  have  assented  to  it.  The  third  is  founded  onTAClT 
consent;  and  is  only  obligatory  on  those  nations,  who  have  adopted  it.-^ 

-^  Law  Reports,  Kinoj's  Bench  Division,  Vol.  2  (1905),  391,  406-4.08. 
--  1  Dallas,  111,  11 C). 
"3  Dallas,  199,  227. 


110 

In  the  same  case,  Mr.  Justice  Wilson  said  that,  "When  the  United 
States  dechired  their  independence,  they  were  hound  to  receive  the  law 
of  nations,  in  its  modern  state  of  purity  and  refinement."  '* 

In  1815,  Mr.  Chief  Justice  Marshall,  speaking  for  the  court  in  Thirty 
Hogsheads  of  Sugar  v.  Boyle,  said : 

The  law  of  nations  is  the  great  source  from  which  we  derive  those 
rules,  respecting  belligerent  and  neutral  rights,  which  are  recognized 
by  all  civilized  and  commercial  states  throughout  Europe  and  America. 
This  law  is  in  part  unwritten,  and  in  part  conventional.  To  ascertain 
that  which  is  unwritten,  we  resort  to  the  great  principles  of  reason  and 
justice;  but,  as  these  principles  will  be  differently  understood  by  dif- 
ferent nations  under  different  circumstances,  we  consider  them  as  be- 
ing, in  some  degree,  fixed  and  rendered  stable  by  a  series  of  judicial 
decisions.  The  decisions  of  the  Courts  of  every  country,  so  far  as  they 
are  founded  upon  a  law  common  to  every  country,  will  be  received, 
not  as  authority,  but  with  respect.  The  decisions  of  the  Courts  of 
every  country  show  how  the  law  of  nations,  in  the  given  case,  is  under- 
stood in  that  country,  and  will  be  considered  in  adopting  the  rule  which 
is  to  prevail  in  this.^^ 

In  1900,  Mr.  Justice  Gray  said  on  behalf  of  the  court  in  The  Paqiiete 
Habana: 

International  law  is  part  of  our  law,  and  must  be  ascertained  and 
administered  by  the  courts  of  justice  of  appropriate  jurisdiction,  as 
often  as  questions  of  right  depending  upon  it  are  duly  presented  for 
their  determination.  For  this  purpose,  where  there  is  no  treaty,  and 
no  controlling  executive  or  legislative  act  or  judicial  decision,  resort 
must  be  had  to  the  customs  and  usages  of  civilized  nations;  and,  as  evi- 
dence of  these,  to  the  works  of  jurists  and  commentators,  who  by  years 
of  labor,  research  and  experience,  have  made  themselves  peculiarly 
well  acquainted  with  the  subjects  of  which  they  treat.  Such  works  are 
resorted  to  by  judicial  tribunals,  not  for  the  speculations  of  their 
authors  concerning  what  the  law  ought  to  be,  but  for  trustworthy  evi- 
dence of  what  the  law  really  is.-*' 

In  the  same  case,  commenting  upon  a  statement  by  Lord  Stowell 
in  The  Young  Jacob  and  Johanna  (1  C.  Rob.  20),  decided  in  1798,  that 
a  certain  rule  of  capture  was  a  rule  of  comity  only,  and  not  of  legal 
decision,  Mr.  Justice  Graj'^  said: 

The  word  "comity"  was  apparently  used  by  Lord  Stowell  as  sy- 
nonymous with  courtesy  or  good  will.     But  the  period  of  a  hundred 

2^3  Dallas,  281. 

^''  9  Crancli,  101,  198. 

^°  175  United  States  Reports,  G77,  700. 


Ill 

3'cars  which  has  since  elapsed  is  amply  suflicient  to  have  enabled  what 
originally  may  have  rested  in  custom  or  comity,  courtesy  or  concession, 
to  grow,  by  the  general  assent  of  civilized  nations,  into  a  settled  rule 
of  international  law.  As  well  said  by  Sir  James  Mackintosh:  "In  the 
present  century  a  slow  and  silent,  but  very  substantial  mitigation  has 
taken  place  in  the  practice  of  war;  and  in  proportion  as  that  mitigated 
practice  has  received  the  sanction  of  time,  it  is  raised  from  the  rank 
of  mere  usage,  and  becomes  part  of  the  law  of  nations."  Discourse  on 
the  Law  of  Nations,  38;  1  Miscellaneous  Works,  360,-" 

Article  36 

The  court  shall  give  an  advisory  opinion  upon  any  question 
or  dispute  of  an  international  nature  referred  to  it  by  the  Council 
or  Assembly, 

When  the  court  shall  give  an  opinion  on  a  question  of  an 
international  nature  which  does  not  refer  to  any  dispute  that 
may  have  arisen,  it  shall  appoint  a  special  commission  of  from 
three  to  five  members. 

When  it  shall  give  an  opinion  upon  a  question  which  forms 
the  subject  of  an  existing  dispute,  it  shall  do  so  under  the  same 
conditions  as  if  the  case  had  been  actually  submitted  to  it  for 
decision. 

According  to  Article  14  of  the  Covenant,  the  Permanent  Interna- 
tional Court  of  Justice  is  to  fulfil  a  two-fold  purpose.  First,  it  is  de- 
clared to  be  competent  "to  hear  and  determine  any  dispute  of  an  in- 
ternational character  which  the  parties  thereto  submit  to  it";  secondly, 
it  may  also  "give  an  advisory  opinion  upon  any  dispute  or  question 
referred  to  it  by  the  Council  or  by  the  Assembly," 

In  the  first  case,  it  acts  as  a  court  upon  a  case  submitted  to  it  by 
the  parties  in  litigation,  and  renders  a  judgment  which  decides  the 
question  and  binds  the  parties.  In  the  next  case,  it  renders  an  ad- 
visorj'  opinion  upon  a  case  stated  to  it  by  the  Council  or  Assembly, 
The  case  stated  may  be  hypothetical  or  it  may  be  actual;  hypothetical 
in  the  sense  that  it  is  not  a  dispute  between  two  states;  actual  in  the 
sense  that  it  may  be  a  dispute  submitted  to  the  Council  or  Assembly 
by  the  parties  in  controversy,  which,  however,  have  not  submitted  it 
to  the  court.  Either  body  may  refer  the  dispute  to  the  court  for  its 
opinion.  In  the  first  of  these  two  cases,  the  court  does  not  act  as  such; 
it  docs  not  need  to  sit  as  a  complete  body.  It  can  meet  the  require- 
ments of  the  situation  by  the  appointment  of  a  committee,  and  Article 
36  provides  that  in  such   a  case,  a  Committee  of  from  three  to  five 


''  IT.)  United  States  Reports.  094. 


112 

iiienibers  will  be  competent.  The  special  commission  of  three  mem- 
bers provided  lor  by  Article  26,  to  be  appointed  annually,  may  be  util- 
ized lor  this  purpose.  In  the  case,  however,  of  an  actual  dispute  sub- 
mitted to  the  court  by  the  Council  or  the  Assembly,  the  court  should 
sit  as  a  court  acting  under  a  sense  of  judicial  responsibility,  and  render 
its  opinion  in  the  form  of  a  judgment. 

This  very  happy  analysis  of  the  situation  was  made  and  drafted 
by  Mr.  de  Lapradelle  in  the  Drafting  Committee,  and  reported  to  the 
Advisory  Committee  by  that  body  and  accepted  in  the  form  in  which 
it  was  submitted. 

Advisory  opinions  are  not  strangers  in  the  English-speaking  world: 
they  have  been  requested  and  given  for  centuries  in  Old  England  and 
in  most  of  the  states  of  New  England  from  colonial  days  down  to  and 
including  the  present.  The  practice  obtains  in  Massachusetts,  New 
Hampshire,  Maine  and  Rhode  Island,  and  in  the  newer  states  of  Florida, 
Colorado  and  South  Dakota,  some  seven  in  all.-^  In  the  United  States, 
the  practice  is  conlined  to  the  states  and  only  in  those  mentioned.  It 
is  unknown  in  the  Government  of  the  Union  in  which  by  custom  the 
judges  are,  in  Mr.  Root's  language,  "judicial  officers  and  nothing  else."^^ 
But  wherever  rendered,  whether  in  England  or  in  the  states  of  the 
United  States,  the  opinions  are  "advisoi-y."  They  are  not  judgments. 
They  may  be  given  on  an  actual  or  hypothetical  case,  or  on  abstract 
questions  of  existing  law. 

In  a  very  learned  opinion  given  by  the  judges  of  Massachusetts 
and  understood  to  have  been  drawn  by  Chief  Justice  Gray  (later  a  Jus- 
tice of  the  Supreme  Court  of  the  United  States) ,  it  is  said  that  the  arti- 
cle in  the  Constitution  of  Massachusetts  requiring  advisory  opinions 
"evidently  had  in  view  the  usage  of  the  English  Constitution,  by  which 
the  King,  as  ^vell  as  the  House  of  Lords,  whether  acting  in  their  judicial 


2^  See  James  Bradley  Thayer,  "Memorandum  on  tlie  Legal  Effect  of  Opinions 
given  by  Judges  to  the  Executive  and  the  Legislative  under  certain  American  Con- 
stitutions," 1885,  reprinted  under  the  caption  of  "Advisory  Opinions"  in  his  Legal 
Essays  (1908),  pp.  42-59. 

-^  Thayer,  referring  to  early  attempts  of  tlie  Executive  to  obtain  an  expression 
of  opinion  from  the  judges  of  the  Supreme  Court  on  points  referred  to  them,  says: 

"Considering  themselves  merely  as  constituting  a  legal  tribunal  for  the  decision 
of  controversies  brought  before  tliem  in  legal  form,  these  gentlemen  deemed  it 
improper  to  enter  the  field  of  politics  by  declaring  their  opinion  on  questions  not 
growing  out  of  the  case  before  them.  ...  As  it  is,  we  may  now  read  in  2 
Story,  Const,  s.  1571,  that  while  the  President  may  require  the  written  opinion  of 
his  Cabinet,  'he  does  not  possess  a  like  authority  in  regard  to  the  judicial  depart- 
ment' "  {Legal  Essays,  1908,  pp.  53-54). 


113 

or  ill  their  legislative  capacity,  had  the  right  to  deniaiul  the  opinions  of 
the  twelve  judges  of  England."^'^  As  to  the  origin  and  nature  of  the 
opinions  so  given  the  great  authority  on  such  matters  says:  "The 
giving  of  such  opinions  by  judges  is  not  an  exercise  of  the  judicial  func- 
tion. The  relation  of  the  English  judges  to  the  king,  in  former  days, 
and  their  ancient  place  as  assistants  to  the  House  of  Lords,  led  to  a 
practice,  on  the  pari  of  that  House,  as  well  as  the  king,  of  calling  on 
them  for  advisory  or  'consultative'  opinions."  ^'■ 

In  Anglo-American  jiractice  arguments  of  counsel  play  a  great  role 
and  a  case  decided  without  argument  is  rarely  looked  upon  as  possess- 
ing the  authority  of  one  in  which  the  judges  have  had  help  from  coun- 
sel. For  this  reason  the  unaided  opinions  of  the  judges  are  held  by 
the  judges  to  be  merely  in  the  nature  of  advice  and  to  have  no  weight 
as  precedents.^- 

CHAPTER  HI 

Procedure 

Article  37 

The  official  language  of  the  court  shall  be  French. 
The  court  may,  at  the  request  of  the  contesting  parties,  au- 
thorize another  language  to  be  used  before  it. 

Heretofore  the  project  has  dealt  with  the  organization  of  the  court 
and  its  jurisdiction.  We  now  have  a  court  "in  being,"  to  press  into  the 
service  of  justice  a  much  quoted  naval  phrase.  But  the  court  is  for 
use,  not  ornament,  and  to  be  used,  it  is  for  the  convenience  both  of  the 
court  and  of  the  parties  appearing  before  it  that  the  procedure  should 
be  defined  and  known  in  advance. 

The  draft  convention  for  the  Court  of  Arbitral  Justice  provided  in 
Article  22,  that  that  court  should  follow  "the  rules  of  procedure  laid 
down  in  the  Convention  for  the  pacific  settlement  of  international  dis- 
putes, except  in  so  far  as  the  procedure  is  laid  down  in  the  present 


^°  Opinion  of  the  Justices  of  the  Supreme  Judicial  Court  of  Massacliusetts,  1878 
(126  Mass.,  557,  561). 

^^  "This  may  be  traced  very  far  back  in  our  records,  e.  g.,  in  1387  (2  Stat. 
Realm,  102-1 04),  King  Ricliard  VI  puts  to  his  judges  a  long  string  of  questions." 
James  Bradley  Thayer,  Cases  on  Constitutional  Lore  (1805),  Vol.  I.  p.   17o. 

^^  Certificate'of  the  judges  respecting  tlie  Court  Martial  proposed  to  be  held  upon 
Lord  G'.'orge  Sackville  (I7t;0),  2  Eden.  Ajjpendix.  p.  'Ml^  Tat/lor  v.  Place,  1856, 
4  Rhode  Island,  324,  362. 


114 

Convention."  The  representatives  of  the  Five  Powers,  namely,  Sweden, 
Norway,  Denmark,  Holland  and  Switzerland,  who  met  at  The  Hague  in 
the  month  of  February,  1920,  and  drafted  the  so-called  "Five  Power 
Plan,"  completed  its  project  by  a  section  on  procedure,  drawing  upon 
the  rules  laid  down  in  the  Pacific  Settlement  Conventions  of  1899  and 
1907,  and  the  Draft  Convention  for  the  Court  of  Arbitral  Justice  of  1907, 
which  its  members  believed  applicable  to  a  Permanent  Court  of  Justice 
as  contemplated  by  Article  14  of  the  Covenant. 

The  Pacific  Settlement  Convention  of  1899,  and  its  revision  of  1907, 
the  Draft  Convention  for  the  Court  of  Arbitral  Justice,  the  Prize  Court 
Convention  and  the  Five  Power  Plan  were  before  the  members  of  the 
Advisory  Committee.  In  informal  sessions,  the  Five  Power  Plan  was 
adopted  as  the  basis  of  discussion,  and  a  project  based  upon  it  with 
reference  to  the  other  texts  was  prepared.  Tliis  was  submitted  to  the 
Drafting  Committee,  which  made  further  modifications.  The  report  of 
the  Drafting  Committee  was  made  the  basis  of  discussion  in  the  Ad- 
visory Committee,  and  with  sundry  amendments  and  additions  is  em- 
bodied in  the  project  under  the  caption  of  "Procedure." 

At  the  outset,  it  is  necessary  that  the  court  and  parties  litigant 
should  understand  one  another.  This  can  only  be  where  they  use  a 
language  common  to  all.  What  is  this  language  to  be?  This  could  not 
be  doubtful  to  any  one  who  has  had  the  slightest  experience  in  inter- 
national affairs.  The  Advisory  Committee  was  unanimous  for  French 
without  voting  for  any  other  tongue.  They  simply  registered  the  fact 
that  French  is  to-day  the  language  of  the  polite  world,  of  the  diplomatic 
world,  of  international  conferences,  and,  therefore,  of  the  Permanent 
Court  of  International  Justice.^     However,  the  use  of  any  one  language 


^  David  Hume's  advice  to  his  friend,  Edward  Gibbon,  to  use  English  instead 
of  French  in  his  proposed  compositions  was  sound,  but  his  prediction,  made  in  1767, 
amid  the  general  rejoicing  over  the  conquest  of  Canada  from  France,  that  English 
would  displace  French,  still  awaits  complete  fulfilment. 

In  the  course  of  a  letter  to  the  historian  Gibbon,  who  fortunately  followed  his 
advice,  Hume  has  this  ])assage,  interesting  alike  to  French  and  English  readers  and 
not  irrelevant  to  the  subject  in  hand: 

Let  the  French,  therefore,  triumph  in  the  present  diffusion  of  their 
tongue.  Our  solid  and  increasing  establishments  in  America,  where  we  need 
less  dread  the  inundation  of  Barbarians,  promise  a  superior  stability  and 
duration  to  the  English  language  fMr.  Hume  to  Mr.  Gibbon,  October  24, 
1767.  The  Memoirs  of  the  Life  of  Edward  Gibbon  with  various  Observations 
and  Excursions  by  Himself,  edited  by  George  B.  Hill  (10(70),  Appendix  No. 
30,  p.  310]. 


115 

should  not  prejudice  the  use  of  another  if  it  be  the  desire  of  the  litigants 
appearing  before  the  court  to  make  use  of  a  language  other  than  French. 
This  the  court  may,  according  to  the  express  terms  of  Article  37,  grant, 
but  it  will  assuredly  only  permit  it  when  its  members  understand  the 


After  the  Independence  of  the  American  Colonies  produced  in  large  measure 
by  the  timely  intervention  of  France  in  a  critical  moment,  one  Antoine  Rivarol  en- 
tered the  lists  in  behalf  of  France  and  the  I'rench  language. 

The  occasion  was  a  prize  offered  by  the  Academy  of  Berlin  in  1783  on  the  fol- 
lowing subject:  "What  has  rendered  the  French  language  universal?  Why  does  it 
merit  this  preeminence?     Will  it  be  maintained?" 

In  competition  for  this  prize  which  he  obtained,  Rivarol  wrote  his  famous  "Dis- 
course on  the  Universality  of  the  French  Language,"  in  the  course  of  which  he  said: 

Voyons  maintenant  si  le  genie  et  les  ecrivains  de  la  langue  anglaise 
auraient  pu  lui  donner  cette  universalite  qu'elle  n'a  point  obtenue  du  caractere 
et  de  la  reputation  du  peuple  qui  la  parle.  Opposons  sa  langue  a  la  notre, 
sa  litterature  a  notre  litterature,  et  justifions  le  choix  de  I'univers. 

Ce  n'est  point  I'aveugle  amour  de  la  patrie  ni  le  prejuge  national  qui 
m'ont  conduit  dans  ce  rapprochement  des  deux  peuples:  c'est  la  nature  et 
I'evidence  des  faits. 

II  me  reste  a  prouver  que,  si  la  langue  fran9aise  a  conquis  I'empire  par 
ses  livres,  par  I'humeur  et  par  I'heureuse  position  du  peujole  qui  la  parle,  elle 
le  conserve  par  son  propre  genie. 

Mais  la  langue  fran^aise,  ayant  la  clarte  par  excellence,  a  du  chercher 
toute  son  elegance  et  sa  force  dans  I'ordre  direct;  I'ordre  et  la  clarte  ont  dia 
surtout  dominer  dans  la  prose,  et  la  prose  a  dii  lui  donner  I'empire.  Cette 
marche  est  dans  la  nature:  rien  n'est  en  effet  comparable  a  la  prose 
fran^aise. 

Elle  est,  de  toutes  les  langues,  la  seule  qui  ait  une  probite  attachee  a 
son  genie.  Sure,  sociale,  raisonnable,  ce  n'est  plus  la  langue  fran^aise,  c'est 
la  langue  humaine;  et  voila  pourquoi  les  puissances  Font  appelee  dans  leurs 
traites:  elle  y  regne  depuis  les  conferences  de  Nimegue,  et  desormais  les 
interets  des  peuples  et  les  volontes  des  rois  reposeront  sur  une  base  plus  fixe; 
on  ne  semera  plus  la  guerre  dans  des  paroles  de  paix. 

Les  Etats  se  renverseront,  et  notre  langue  sera  toujours  retonuc  dans 
la  tempete  par  deux  ancrcs,  sa  litterature  et  sa  clarte.  jusqu'au  moment  oil, 
par  une  de  ces  grandes  revolutions  qui  remettent  les  choses  a  leur  premier 
point,  la  nature  vienne  renouveler  ses  traites  avec  un  autre  genre  humain. 

Cependant  I'Angleterre,  temoin  de  nos  succes,  ne  les  partage  point.  Sa 
derniere  guerre  avec  nous  la  laisse  dans  la  double  eclipse  de  sa  litterature 
et  de  sa  preponderance,  ct  cette  guerre  a  donne  a  I'Europe  un  grand  specta- 
cle. On  y  a  vu  un  peuple  libre  conduit  jiar  I'Angleterre  a  I'esclavage  et 
ramene  par  un  jeune  monarque  a  la  liberte.  L'histoire  de  I'Amerique  se 
reduit  desormais  a  trois  epoques:  egorgee  par  I'Espaijne,  opprimee  par  1'  Vn'rle- 
terre  et  sauvee  par  la  France.  Rivarol,  "De  I'universalit^  de  la  lano-„o  fr"in- 
9aise.'  in  the  Oeuvres  choisies  de  A.  Rivarol,  M.  de  Lescure,  ed^  (1880) 
Vol.  I,  pp.  20,  42,  43,  47-8,  51,  52.  nO-1.  ' 


116 

language  which  the  parties  litigant  propose  to  use.  Otherwise,  justice 
might  suffer. 

It  is  really  no  hardship  to  the  parties  litigant,  even  though  they 
both  belong  to  the  English-speaking  peoples;  it  is  no  hardship  to  the 
nineteen  nations  using  Spanish  as  their  mother-tongue,  to  use  French. 
Each  government  in  litigation  need  only  select  agents  or  advocates  pos- 
sessing a  knowledge  of  French,  and  even  in  the  improbable  case  that 
they  are  unable  to  find  any  to  their  liking  at  home,  there  are  many  able, 
capable  and  upright  French  lawyers  of  eminence  who  would  gladly  ac- 
cept a  brief  from  a  foreign  country. 

The  use  of  French  as  the  ofiicial  language  of  the  court  means,  of 
course,  that  the  pleadings  will  be  in  French,  tlie  oral  arguments  will 
be  in  French,  the  minutes  of  the  court  will  be  in  French,  the  reports 
of  the  court  will  be  in  French,  and  that  French  decisions,  French  prece- 
dents, French  procedure  and  French  treatises  will  be  heavily  drawn 
upon. 

France  saved  not  only  its  territorial  integrity  and  its  political  in- 
dependence, but  also  its  intellectual  supremacy  and  the  predominance 
of  its  language,  at  the  Marne. 

Article  38 

A  state  desiring  to  have  recourse  to  the  court  shall  lodge  a 
w^ritten  application  addressed  to  the  registrar. 

The  application  shall  indicate  the  subject  of  the  dispute,  and 
name  the  contesting  parties. 

The  registrar  shall  forthwith  communicate  the  application  to 
all  concerned. 

He  shall  also  notify  the  members  of  the  League  of  Nations 
through  the  Secretary  General. 

Having  determined  the  language,  which  is  as  a  preliminary  article 
or  preamble  to  the  section  on  procedure,  the  project  next  takes  up  the 
orderly  course  of  a  suit,  from  its  presentation  to  its  final  judgment. 

The  court  does  not  assume  jurisdiction.  An  application  is  to  be 
addressed  to  the  registrar.  It  need  not  be  a  voluminous  document;  its 
purpose  is  only  to  indicate  the  subject  of  the  dispute  and  the  parties 
to  it. 

The  registrar,  or  the  clerk  of  the  court,  as  we  would  say  in  American 
EngUsh,  is  to  notify  forthwith  the  interested  parties.  Tliis  will  prob- 
ably be  done  by  transmitting  a  copy  of  the  application  itself.  It  would 
not  only  be  the  easiest  method;  it  would  also  avoid  the  danger  of  error 
incident  to  a  summary. 

Should  it  be  likewise  given  to  the  press?     This  proposition  was 


117 

made,  discussed  and  rejected  in  the  informal  sessions  on  procedure  on 
the  ground  that  an  application  from  one  litigant  is  bound  to  be  an  ex 
parte  statement:  that  its  publication  by  the  court  might  seem  to  preju- 
dice public  opinion  in  favor  of  the  plaintiff  and  against  the  defendant 
before  the  latter's  case  was  presented  or  even  prepared.  One  story  is 
proverbially  good  until  the  other  is  told.  It  was  decided,  however,  that 
the  members  of  the  League  of  Nations  should  be  informed  of  the  appli- 
cation. This  will  probably  be  done  by  transmitting  a  copy  of  the  ap- 
plication to  each. 

In  addition  to  informing  them,  it  will  give  any  of  them  an  opportu- 
nity to  intervene  in  the  case,  if  the  interests  of  third  parties  should  seem 
to  be  involved. 

Article  39 

If  the  dispute  arises  out  of  an  act  which  has  already  taken 
place  or  which  is  innninent,  the  court  shall  have  the  power  to 
suggest,  if  it  considers  that  circumstances  so  require,  the  provi- 
sional measures  that  should  be  taken  to  preserve  the  respective 
rights  of  either  party. 

Pending  the  final  decision,  notice  of  the  measures  suggested 
shall  forthwith  be  given  to  the  parties  and  the  Council. 

It  may  well  be  that  the  rights  of  the  parties  are  likely  to  be  affected 
unless  action  be  taken  in  their  behalf.  The  question  therefore  arises, 
whether  it  is  possible  to  invest  the  court  with  the  power  to  assume  con- 
trol of  the  subject-matter  and  to  take  or  suggest  measures  necessary  for 
its  protection  pending  the  trial  and  disposition  of  the  case.  In  other 
words,  is  it  practicable  to  allow  the  court  to  issue  a  temporary  injunc- 
tion? 

The  treaties  for  the  advancement  of  peace,  negotiated  by  Secretary 
of  State  Bryan,  furnish  the  answer  in  the  form  of  a  precedent,  or  really 
in  the  form  of  three  precedents,  as  there  are  three  treaties  concluded 
by  him  on  behalf  of  the  Ignited  States,  one  with  China  and  one  with 
France,  signed  September  15,  1914,  and  one  with  Sweden,  signed  October 
13,  1914.     The  fourth  article  of  each  provides  that: 

In  case  the  cause  of  the  dispute  should  consist  of  certain  acts  al- 
ready connnitted  or  about  to  be  committed,  the  Connnission  [of  Inquiry] 
shall  as  soon  as  possible  indicate  what  measures  to  preserve  the  rights 
of  each  party  ought  in  its  opinion  to  be  taken  provisionally  and  pending 
the  delivery  of  its  report.^ 


"  Treaties  for  the  Advancement  of  Peace  hettceen  the  United  States  and  Other 
Poicers  Xef/otiated  hi/  the  Honorable  William  J.  lirijan,  Secretari/  of  State  of  the 
United  States  (Carnegie  Endowment  for  International  Peace,  lO^O).  pp.  17,  37,  05. 


118 

The  Committee  transferred  this  provision  bodily  from  the  treaties 
for  the  advancement  of  peace  to  its  project  for  the  advancement  of 
justice.    And  rightly,  for  peace  is  the  perfected  work  of  justice. 

This  is  a  modest  beginning  to  what  may  prove  to  be  a  very  useful 
remedy.  It  is  at  present  an  indication,  a  suggestion,  and  the  duty  of 
the  court  stops  with  notice  to  the  parties  and  to  the  Council. 

Article  40 

The  parties  shall  be  represented  by  agents. 

They  may  have  counsel  or  advocates  to  plead  before  the  court. 

States  do  not  act  by  themselves;  they  have  representatives.  Before 
the  court  these  representatives  are  termed  agents.  The  function  of  the 
agent  is,  as  stated  by  Article  37  of  the  Pacific  Settlement  Convention  of 
1899,  "to  act  as  intermediaries  between  themselves  and  the  tribunal." 
The  agent  may  be  instructed  or  permitted  by  his  government  to  prepare 
the  case,  to  present  it  and  to  argue  it  before  the  court.  In  practice, 
counsel  or  advocates  are  appointed  to  aid  the  agent  in  the  performance 
of  his  various  duties.  There  is  a  tendency  to  have  the  agent  prepare 
and  conduct  the  case,  and  to  have  it  presented  and  argued  by  counsel 
or  advocates.  The  agent  is  the  political  representative  of  his  country; 
counsel  and  advocates  are  legal  luminaries.  A  separation  of  functions 
seems  likely  to  take  place  if  the  court  is  established,  succeeds  and  is 
full  to  overflowing  with  business. 

Article  41 
The  procedure  shall  consist  of  two  parts:  written  and  oral. 

In  practice,  procedure  is  divided  into  two  phases  which  the  present 
project  terms  "written  and  oral."  Article  39  of  the  Pacific  Settlement 
Convention  of  1899  calls  these  "pleadings  and  oral  discussions." 

The  report  of  1899  on  the  convention  states  that  it  is  desirable  to 
distinguish  them,  that  "the  first  is  always  indispensable,"  and  that  "the 
second  is  ordinarily  a  necessary  complement  of  the  first."  The  distinc- 
tion is  indeed  important.  The  first  phase  can  be  completed  without  the 
cooperation  of  the  court  and  indeed  before  it  is  convened.  The  second 
phase  consists  of  the  trial  of  the  case  in  the  court  before  the  judges  upon 
the  issue  or  issues  made  by  the  written  pleadings.  It  is  the  hearing  of 
the  case,  as  English  and  American  lawyers  would  say. 

Article  42 

The  written  proceedings  shall  consist  of  the  communication 
to  the  judges  and  to  the  parties  of  statements  of  cases,  counter- 


119 

cases  and,  if  necessarj',  replies;  also  all  papers  and  documents  in 
support. 

These  communications  shall  be  made  through  the  registrar, 
in  the  order  and  within  the  time  fixed  by  the  court. 

A  certified  copy  of  every  document  produced  by  one  party 
shall  be  communicated  to  the  other  party. 

The  written  pleadings  ordinarily  consist  of  the  case  submitted  to 
the  court  by  the  plaintiff  and  the  counter-case  submitted  bj^  the  de- 
fendant. These  are  prepared  by  the  agents  of  the  parties  plaintiff  and 
defendant,  usually  assisted  by  counsel.  They  are  transmitted  to  the 
clerk  of  the  court,  and  by  that  ofTicial  to  the  judges.  They  are  prepared 
by  each  without  the  knowledge  of  the  other  party.  The  agents  of  the 
parties  may  desire,  after  reading  the  case  made  out  by  the  other,  to 
present  a  reply.  This  may  be  done.  The  various  pleadings  should 
contain  the  proofs  and  documents  upon  which  the  parties  reh'  and  a 
certified  copy  of  every  document  produced  by  one  party  should  be  com- 
municated to  the  other. 

Article  42  of  the  project  so  provides,  in  accordance  with  the  pro- 
cedure of  Articles  39  and  40  of  the  Pacific  Settlement  Convention  of 
1899,  and  Articles  63  and  64  of  the  Convention  as  revised  in  1907. 

Article  43 

The  oral  proceedings  shall  consist  of  the  hearing  by  the  court 
of  witnesses,  experts,  agents,  counsel  and  advocates. 

For  the  service  of  all  notices  upon  persons  other  than  the 
agents,  counsel  and  advocates,  the  court  shall  applj^  direct  to  the 
government  of  the  state  upon  whose  territory  the  notice  has  to 
be  served. 

The  same  provision  shall  apply  whenever  steps  are  to  be 
taken  to  procure  evidence  on  the  spot. 

So  much  for  the  written  pleadings.  The  court  needs  now  to  be  in 
session  for  the  hearing  of  the  case. 

Witnesses  and  experts  may  be  called,  agents,  counsel  and  advocates 
may  be  heard.  Under  the  summary  procedure  devised  by  the  Second 
Hague  Conference,  witnesses  and  experts  could  be  called  and  the  tri- 
bunal might  request  explanations  from  the  agents  as  well  as  from  ex- 
perts and  witnesses  which  the  tribunal  might  care  to  summon  and  to 
hear.     There  was  to  be  no  oral  argument.^ 

Witnesses  and  experts  which  the  court  may  wish  to  summon  and 
to  hear  will  need  to  be  notified  to  appear,  and  evidence  may  be  needed 


Pacific  Settlement  Convention,  Article  00. 


120 

which  can  only  be  had  beyond  the  seat  of  the  court.  How  is  the  notice 
in  each  case  to  be  served?  There  is  no  difliculty  in  the  case  of  agents, 
counsel  and  advocates,  as  this  can  be  done  by  the  clerk  of  the  court. 
If  the  witnesses  and  experts  reside  within  Holland,  and  the  evidence 
can  likewise  be  procured  in  that  country,  the  court  can  apply  to  the 
Government  of  Holland,  requesting  it  to  serve  the  notices.  In  like 
manner,  the  court  should  apply  to  the  government  of  the  foreign  state 
upon  whose  territory  the  notice  is  to  be  served. 

The  provisions  for  the  service  of  notice  are  practically  identical 
with  Article  25,  paragraph  1,  of  the  Draft  Convention  for  the  Court  of 
Arbitral  Justice,  and  Article  27,  paragraph  1,  of  the  Prize  Court  Con- 
vention. 

Article  44 

The  proceedings  shall  be  under  the  direction  of  the  president, 
or  in  his  absence,  of  the  vice  president;  if  both  are  absent,  the 
senior  judge  shall  preside. 

For  the  orderly  conduct  of  business,  it  is  necessary  that  the  pro- 
ceedings should  be  directed  by  a  competent  person.  This  is  univer- 
sally the  duty  of  the  president.  In  courts  which  have  a  vice  president, 
this  official  would  naturally  act  in  the  absence  of  the  president;  in  the 
absence  of  both,  the  senior  judge.  Article  44  so  provides,  in  the  lan- 
guage of  Article  26  of  the  Draft  Convention  of  the  Court  of  Arbitral 
Justice,  and  of  Article  38  of  the  Prize  Court  Convention  of  1907. 

Article  45 

The  hearing  in  court  shall  be  public,  unless  the  court,  at  the 
written  request  of  one  of  the  parties,  accompanied  by  a  statement 
of  his  reasons,  shall  otherwise  decide. 

Shall  the  court  hear  the  case  in  public?  Shall  it  have  the  power  to 
decide  to  hear  the  case  behind  closed  doors  upon  its  own  motion,  at  the 
request  of  both  of  the  parties,  or  at  the  request  of  only  one  of  them? 
Article  45  lays  down  the  general  rule  that  the  case  shall  be  heard  in 
public.  It  allows  the  court,  however,  upon  the  request  of  one  of  the 
parties,  to  decide  otherwise. 

It  was  proposed  in  the  informal  meetings  of  the  committee  to  con- 
sider procedure,  that  the  court  should  sit  in  public  and  that  this  rule 
should  not  be  varied.  It  was  also  proposed  that  it  should  sit  in  public 
except  at  the  request  of  both  parties.  It  was  finally  agreed  to  allow  the 
court,  at  the  request  of  one  party,  to  decide  that  it  should  sit  behind 
closed  doors,  provided  that  the  request  be  accompanied  by  a  statement 


121 

of  the  reasons  which  in  the  opinion  of  the  party  making  the  request 
would  justify  it.  Publicity  is  thus  the  rule,  privacy  the  exception;  and 
the  exception  must  he  justified  by  reasons  which  the  court  approves. 
It  is  therefore  safe  to  predict  that  publicity  will  not  suffer  by  the  appli- 
cation of  the  rule  permitting  privacy  of  proceedings  under  what  will 
inevitably  be  very  special  circumstances. 

Article  46 

Minutes  shall  be  made  at  each  hearing  and  signed  by  the 
registrar  and  the  president. 

These  minutes  shall  be  the  only  authentic  record. 

The  court  should  have  a  record  of  its  proceedings.  This  record 
should  be  official.  It  should  therefore  be  prepared  in  the  clerk's  office.  It 
should  be  signed  by  the  registrar,  to  indicate  that  it  was  prepared  in  his 
office,  and  to  guarantee  its  accuracy.  It  should  be  signed  by  the  presi- 
dent, on  behalf  of  the  court,  to  identify  it  as  the  authentic  record  of  its 
proceedings.  This  document,  thus  prepared,  is  by  Article  46  declared 
to  be  the  only  authentic  record  in  the  premises. 

These  provisions,  reasonable  in  themselves  and  carrying  conviction 
without  authority,  are  based  upon  Article  21  of  the  Pacific  Settlement 
Convention  of  1899,  Article  66  of  the  revision  of  1907,  and  reproduced 
from  Article  39,  paragraph  2,  of  the  Prize  Court  Convention. 

Article  47 

The  court  shall  make  orders  for  the  conduct  of  the  case,  shall 
decide  the  form  and  time  in  which  each  party  must  conclude  its 
arguments,  and  make  all  arrangements  connected  with  the  taking 
of  evidence. 

The  convention  constituting  the  court  can  only  be  expected  to  lay 
down  the  main  lines  of  procedure.  It  can  not  and  should  not  attempt 
to  provide  against  every  emergency.  Cases  differ  and  the  procedure 
must  be  modified  to  meet  changing  and  changed  conditions.  The  court 
must  have  this  power,  otherwise  injustice  may  be  inadvertently  done. 
The  power,  however,  should  be  specifically  conferred.  This  is  done  by 
Article  47,  which  makes  the  court  master  of  the  case,  permitting  it  to 
issue  rules  for  its  conduct,  to  decide  the  forms,  the  times  within  which 
the  parties  shall  conclude  their  argument,  and  to  make  the  necessary 
arrangements  for  the  taking  of  evidence.  These  provisions  were  de- 
vised by  file  First  Hague  Conference  and  are  contained  in  Article  49  of 
the  Pacific  Settlement  Convention.  They  justified  themselves,  and  were 
carried  over  into  the  revision  of  that  convention  made  bv  the  Second 


122 

Hague  Conference.     They  are  identical  in  substance  and  almost  identi- 
cal in  form,  therefore,  with  Article  74  of  the  revised  convention. 

Article  48 

The  court  may,  even  before  the  hearing  begins,  call  upon  the 
agents  to  produce  any  document,  or  to  supply  to  the  court  any 
'  explanations.     Any  refusal  shall  be  recorded. . 

Familiar  in  advance  with  the  procedure  to  be  followed  and  the 
means  of  getting  the  case,  with  the  proofs  to  support  their  contentions, 
before  the  court,  the  judges  may  have  the  impression  that  one  or 
other  agent  is  withholding  evidence  which,  if  produced,  would  be  of 
service  to  the  court  in  enabling  it  to  reach  a  just  judgment.  The  natural 
desire  of  the  agent  is  to  win  the  case,  not  to  enable  the  opposite  party 
to  triumph.  The  evidence  may  therefore  be  presented  in  a  fragmen- 
tary way,  to  the  satisfaction  of  the  agent  or  agents  of  both  parties,  in 
so  far  as  their  respective  contentions  are  concerned,  but  to  the  dissatis- 
faction of  the  court,  whose  sole  purpose  is  justice,  not  success.  Hence, 
it  is  essential  that  the  court  before  or  during  the  trial  of  the  case  be 
empowered  to  call  for  the  production  of  documents  which  it  may  deem 
material,  and  of  its  own  motion  to  request  arguments  on  points  which 
are  doubtful  or  not  sufficiently  treated  by  agent  or  counsel.  As  the 
court  deals  with  sovereign  states,  it  cannot  force  the  production  of  evi- 
dence which  one  party  or  the  other  may  be  unwilling  to  present.  It 
can,  however,  and  it  should  note  a  refusal  to  comply  with  its  request. 
This  Article  48  permits  and  requires. 

These  provisions  are  not  new.  They  are  contained  in  substance  and 
almost  in  identical  language  in  Article  44  of  the  Pacific  Settlement  Con- 
vention of  1899  and  Article  69  of  the  revised  convention  of  1907.  They 
have  been  tried  and  they  have  not  been  found  wanting. 

Article  49 

The  court  may,  at  anv  time,  entrust  any  individual,  bureau, 
commission  or  other  body  that  it  may  select,  with  the  task  of 
carrying  out  an  inquiry  or  giving  an  expert  opinion. 

It  may,  however,  happen  that  the  evidence  desired  by  the  court  is 
not  contained  in  a  document  which  can  be  produced  by  either  of  the 
litigating  parties.  It  may  require  an  investigation.  Therefore,  the  court,, 
in  the  interest  of  justice,  is  authorized  by  Article  49  to  cause  an  investi- 
gation to  be  made,  to  obtain  an  expert  opinion,  and  to  choose  the  ways 
and  means  best  calculated  in  its  opinion  to  produce  the  desired  result. 


123 

These  provisions  are,  it  is  believed,  the  logical  consequence  of  the  power 
with  which  the  court  is  vested  to  have  at  its  disposal  the  evidence  needed 
for  the  determination  of  the  case  and  to  do  justice  between  the  parties. 

Article  50 

During  the  hearing  in  court,  the  judges  may  put  any  ques- 
tions, considered  by  them  to  be  necessarj^  to  the  witnesses,  agents, 
experts,  advocates  or  counsel.  The  agents,  advocates  and  coun- 
sel shall  have  the  right  to  ask,  through  the  president,  any  ques- 
tions that  the  court  considers  useful. 

Inasmuch  as  the  witnesses  and  experts,  agents,  advocates  and  coun- 
sel are  for  the  enlightenment  of  the  court,  it  would  seem  to  follow,  and 
without  a  provision  to  that  effect,  that  the  court  should  put  any  and  all 
questions  to  them  which  the  members  of  the  court  niay  consider  neces- 
sary or  advisable  in  the  interest  of  justice. 

Article  50  recognizes,  rather  than  accords  this  right,  inasmuch  as  it 
reproduces  in  substance  the  first  paragraph  of  Article  47  of  the  Pacific 
Settlement  Convention  of  1899  and  Article  72  of  the  revision  of  that 
convention  in  1907.  Each  of  these  articles  contains  in  its  second  para- 
graph the  statement  that  neither  the  questions  nor  the  remarks  of  the 
judges  are  to  be  taken  as  an  expression  of  opinion  on  their  part.  This 
provision  has  been  omitted  as  unnecessar}'. 

It  will  be  observed  that  the  judges  put  questions  which  they  may 
deem  necessary,  whereas  it  is  the  rule  in  English  and  American  courts 
of  justice  for  counsel  themselves  to  put  all  questions  which  thej'  con- 
sider necessary  and  which  the  court  considers  relevant.  In  other  sys- 
tems of  procedure,  counsel  do  not  have  this  right.  In  the  informal  ses- 
sions of  the  committee,  the  opinion  was  freely  expressed  that  the  presi- 
dent of  the  court  might  refuse  to  put  questions  which  counsel  deemed 
important  and  indeed  essential.  It  was  therefore  provided,  in  case  the 
president  refused  to  comply  with  the  request  of  the  agents,  advocates 
and  counsel  entrusted  with  the  trial  of  the  case,  that  an  appeal  could 
be  taken  to  the  court,  which  would  decide  whether  the  questions  should 
or  should  not  be  put.  It  is  believed  that  this  is  a  happy  compromise 
between  the  two  systems  of  procedure. 

Article  51 

After  the  court  has  received  the  proofs  and  evidence  witliin 
the  time  specified  for  the  purpose,  it  may  refuse  to  accept  any 
further  oral  or  written  evidence  that  one  party  may  desire  to 
present  unless  the  other  agrees. 


124 

These  various  provisions  are  designed  to  supply  the  court  with  all 
the  information  needed,  so  that  its  memhers  may  decide  in  the  fullness 
of  knowledge.  There  must  be  an  end  to  litigation,  and  agent  and  coun- 
sel must  present  their  evidence  within  the  time  fixed  or  to  be  fixed  by 
the  court.  But  here,  again,  the  rule  must  not  be  too  rigid,  for  justice  is 
to  be  done.  One  of  the  parties  should  not  be  permitted  to  embarrass 
the  court  and  to  prolong  the  proceedings.  Nevertheless,  if  evidence  has 
come  to  light  which  in  the  opinion  of  both  of  the  parties,  not  merely  one 
of  them,  is  essential  to  the  trial  and  disposition  of  the  case,  it  should  be 
the  duty  of  the  court  to  receive  it.  This  provision  of  Article  51  repro- 
duces the  substance  with  only  a  slight  change  of  language  of  Article  42 
of  the  Pacific  Settlement  Convention  of  1899  and  Article  67  of  the  re- 
vision of  1907. 

But  more  than  this  may  be  needed  for  justice's  sake.  The  court 
should  be  authorized  in  its  discretion  to  receive  further  evidence  at  the 
request  of  one  party  and  over  the  opposition  of  the  other.  A  judgment 
must  not  only  be  just,  it  must  seem  just. 

Article  52 

Whenever  one  of  the  parties  shall  not  appear  before  the 
court,  or  shall  fail  to  defend  his  case,  the  other  party  may  call 
upon  the  court  to  decide  in  favor  of  his  claim. 

The  court  must,  before  doing  so,  satisfy  itself,  not  only  that 
it  has  jurisdiction  in  accordance  with  Articles  33  and  34,  but  also 
that  the  claim  is  supported  by  substantial  evidence  and  well 
founded  in  fact  and  law. 

The  project  and  the  rules  of  procedure  contemplate  the  presence 
of  both  parties  in  litigation  before  the  court.  This  is  essential  in  arbi- 
tration. It  is  not  so,  but  it  is  ordinarily  the  case  in  courts  of  justice. 
If  the  contention  of  the  Japanese  member  should  prevail,  that  the  court 
can  only  exercise  the  jurisdiction  conferred  upon  it  by  Article  34  with 
the  express  consent  of  both  parties  to  the  litigation,  both  of  the  parties 
will  be  before  the  court,  which  can  only  exercise  its  jurisdiction  in  their 
presence.  It  would  therefore  be  unnecessary  to  provide  for  procedure 
in  the  absence  of  one  or  the  other  of  the  parties.  The  remaining  mem- 
bers of  the  Committee  were  of  the  opinion  that  justice  should  not  be 
obliged  to  wait  upon  a  party  which  was  unwilling  to  have  its  conduct 
tested  by  the  rules  of  law  applicable  to  the  dispute.  In  their  opinion, 
the  project  should  contain  a  provision  to  the  effect  tliat,  within  the 
jurisdiction  of  the  court  defined  by  Article  34,  the  plainlilf  sliould  have 
the  right  to  present  its  case  to  the  court,  with  the  evidence  necessary 


125 

to  support  it,  and  to  proceed  in  the  absence  of  the  defendant,  properly 
notified  of  tlie  suit  and  invited  or  summoned  to  appear  before  the  court. 
They  felt  that  the  right  should  be  carefully  safeguarded  so  as  not  to 
jjrejudice  the  interest  of  the  defendant,  and  they  believed  that  the  re- 
quirement to  exhaust  diplomatic  means  before  resorting  to  the  court  in 
any  event  would  prevent  an  abuse  of  the  right. 

The  essential  condition  for  the  exercise  of  jurisdiction  in  such  a 
case  is  and  must  be,  that  the  plaintiff,  although  proceeding  ex  parte, 
should  present  its  case  as  fully  as  if  the  defendant  were  present,  and 
that  the  court  be  especially  mindful  of  the  interests  of  the  absent  de- 
fendant. This  docs  not  mean  that  the  court  shall  take  sides.  It  does 
mean,  however,  that  the  court,  without  espousing  the  cause  of  the  de- 
fendant, shall,  nevertheless,  act  as  its  counsel.  There  is  an  apt  French 
phrase  to  the  effect  that  "the  absenf  are  ahvays  wrong."  The  court 
must  go  on  the  assumption  that  the  absent  party  is  right,  not  wrong  until 
the  plaintiff  has  proven  him  to  be  wrong.  There  is  no  alternative  ex- 
cept to  refuse  jurisdiction,  if  the  defendant  does  not  appear,  or  to  compel 
the  presence  of  the  defendant.  The  world  is  not  ripe  for  this.  The 
precedent  of  the  Supreme  Court  of  the  United  States  is  to  the  effect  that 
it  is  not  necessary  in  the  interest  of  justice  that  the  defendant  state  be 
present,  provided  the  plaintiff  be  held  to  strict  accountability.  This 
very  question  was  considered  on  two  occasions  by  Chief  Justice  Mar- 
shall in  the  fullness  of  his  powers,  after  thirty  years  of  experience  on 
the  bench  as  Chief  Justice  of  the  Supreme  Court  of  the  United  States. 
In  the  suit  over  boundaries  of  the  State  of  New  Jersey  v.  State  of  New 
York,  counsel  not  appearing  for  the  state  of  New  York,  the  Chief  Jus- 
tice allowed  summons  to  be  issued  against  that  state  to  procure  its  ap- 
pearance. The  summons  was  issued,  but  the  state  of  New  York  did  not 
appear,  and  the  question  then  arose  whether  the  plaintiff  could  proceed 
in  "the  absence  of  the  defendant.  Upon  this  question  Chief  Justice  Mar- 
shall, speaking  for  the  court,  said : 

It  has  then  been  settled  by  our  predecessors,  on  great  deliberation, 
that  this  court  may  exercise  its  original  jurisdiction  in  suits  against  a 
state,  under  the  authority  conferred  by  the  constitution  and  existing 
acts  of  congress.  The  rule  respecting  the  process,  the  persons  on  whom 
it  is  to  be  served,  and  the  time  of  service  are  fixed.  The  course  of  the 
court  on  the  failure  of  the  state  to  appear,  after  the  due  service  of 
process,  has  been  also  prescribed. 

In  this  case  the  sul)i)ocna  lias  been  served  as  is  re(iuired  by  the  rule. 
The  complainant  according  to  the  practice  of  the  court,  and  according 
to  the  general  order  made  in  the  case  of  Grayson  vs.  The  Commonwealth 
of  Virginia   [3  Dallas,  ,T2(),  decided  in  1796",  has  a  right  to  proceed  ex 


126 

parte;  and  the  court  will  make  an  order  to  that  effect,  that  the  cause 
may  be  prepared  for  a  linal  hearing.  If  upon  being  served  with  a  copy 
of  such  order,  the  defendant  shall  still  fail  to  appear  or  to  show  cause 
to  the  contrary,  this  court  will,  as  soon  thereafter  as  the  cause  shall  be 
prepared  by  the  complainant,  proceed  to  a  final  hearing  and  decision 
thereof.* 

This  decision  was  confirmed  a  few  years  later  in  the  leading  case 
of  Massachusetts  v.  Rhode  Island,  in  which  Mr.  Justice  Thompson  ex- 
pressed the  opinion  "that  the  practice  seems  to  be  well  settled,  that  in 
suits  against  a  state,  if  the  state  shall  refuse  or  neglect  to  appear,  upon 
due  service  of  process,  no  coercive  measures  will  be  taken  to  compel 
appearance;  but  the  complainant,  or  plaintiff,  will  be  allowed  to  pro- 
ceed ex  parte."  "  There  is,  therefore,  no  lack  of  precedent  for  the  Per- 
manent Court  of  International  Justice. 

Article  52  of  the  project  according  this  right  to  the  plaintiff  state 
contemplates,  as  is  the  practice  of  the  Supreme  Court  of  the  United 
States,  that  the  plaintiff"  shall  prepare  the  case  for  final  hearing.  Judg- 
ment is  not  to  be  entered  upon  the  pleadings  of  the  plaintiff;  counsel  can 
not  rest  with  folded  arms  and  ask  that  a  judgment  be  entered  in  ac- 
cordance with  their  contentions.  The  plaintiff  must  proceed,  albeit  ex 
parte,  and  the  court  enters  judgment  in  accordance  with  the  plaintiff's 
contentions  if,  and  only  if,  and  to  the  extent  that  it  finds  them  to  be 
founded  in  fact  as  well  as  in  law. 

In  the  event  that  this  method  of  procedure  be  accepted  by  the 
League  of  Nations,  its  application  will  be  rare,  inasmuch  as  there  is 
every  inducement  for  a  state  to  be  present,  if  it  knows  that  judgment 
may  be  had  against  it  and  in  its  absence.  Such  action  would  be  in 
accordance  with  the  conduct  of  Massachusetts.  Counsel  for  that  state 
gained  his  point  to  the  effect  that  the  appearance  of  the  defendant, 
Massachusetts,  would  not  be  coerced,  but  inasmuch  as  the  plaintiff, 
Rhode  Island,  was  at  liberty  to  proceed  ex  parte  in  the  absence  of  the 
defendant,  Massachusetts  appeared,  defended  the  case,  and  in  the  final 
decision,  triumphed. 

Article  53 

When  the  agents,  advocates  and  counsel,  subject  to  the  con- 
trol of  the  court,  have  presented  all  the  evidence,  and  taken  all 
other  steps  that  they  consider  advisable,  the  president  shall  de- 
clare the  case  closed. 


*3  Peters,  401,  deeided  in  1830,  and  5  Peters,  284,  290-291,  decided  in  1831. 
^  State  of  Massachusetts  v.  State  of  Rhode  Island   (12  Peters,  755,  761),  de- 
cided in  1838. 


127 

The  court  shall  withdraw  to  consider  the  judgment. 
The  deliberations  of  the  court  shall  take  place  in  private  and 
remain  secret. 

In  the  presence  of  both  parties,  as  well  as  in  the  absence  of  the 
defendant,  the  proceedings  are  under  the  court's  supervision,  and  it  is 
only  when  all  evidence  has  been  taken  and  the  case  is  ready  for  decision, 
that  the  president  will  declare  the  proceedings  at  an  end. 

Comment  upon  this  article  seems  unnecessary,  unless  it  be  to  state 
that  the  phraseology  was  taken  from  Articles  50  and  53  of  the  Pacific 
Settlement  Convention  of  1899,  Articles  77  and  78  of  the  revision  of 
1907. 

The  case  is  then  in  the  hands  of  the  court.  Its  members  withdraw 
to  confer  in  private  and  their  deliberations  are  and  remain  secret. 
These  further  provisions  of  Article  53  are  lifted  bodily  from  Article  78 
of  the  Pacific  Settlement  Convention  as  revised  in  1907,  and  from  Article 
27  of  the  Draft  Convention  of  the  Court  of  Arbitral  Justice. 

Article  54 

All  questions  shall  be  decided  by  a  majority  of  the  judges 
present  at  the  hearing. 

In  the  event  of  an  equality  of  votes,  the  president  or  his 
deputy  shall  have  a  casting  vote. 

Are  the  decisions  to  be  unanimous?  It  is  to  be  hoped  that  they 
will,  but  it  would  be  too  much  to  require  that  they  must  be.  The  Pacific 
Settlement  Convention,  in  its  original  form  (Article  51)  and  its  revised 
form  (Article  78),  contented  itself  with  a  majority.  Article  54  of  the 
present  project  likewise  accepts  a  majority,  borrowing  the  form  and 
substance  of  its  provisions  on  this  point  from  Article  27  of  the  Draft 
Convention  for  the  Court  of  Arbitral  Justice. 

The  court  may,  however,  consist  of  an  even  number  of  judges,  and 
the  judges  may  be  evenly  divided.  What  is  to  be  done?  Article  27  of 
the  Draft  Convention  for  the  Court  of  Arbitral  Justice  provided  that  in 
such  a  case  the  vote  of  the  junior  judge  should  not  be  counted.  But  it 
might  happen  that  this  judge  was  the  temporal^  member  of  the  court 
appointed  by  one  or  other  of  the  parties  in  litigation,  and  in  such  an 
event  there  would  be  an  inequality  at  the  moment  of  decision — the  very 
time  of  all  others  when  parties  litigant  should  be  on  a  fooling  of 
equality. 

After  discussion,  it  was  decided  that  the  opinion  of  the  president 
should,  in  such  cases,  prevail.  The  president  himself  may  be  a  citizen 
or  subject  of  one  of  the  parties.     What  then?     This  contingency  was 


128 

either  overlooked  by  the  Committee,  or  the  care  with  which  the  presi- 
dent is  chosen  seemed  a  guarantee  that  justice  would  not  sutTer  even 
in  such  a  case.     Experience  will  show. 

Article  55 

The  judgment  shall  state  the  reasons  on  which  it  is  based. 
It  shall  contain  the  names  of  the  judges  who  have  taken  part 
in  the  decision. 

The  judgment  of  the  court,  in  the  technical  sense  of  the  term,  is 
restricted  to  the  decision  on  the  very  point  submitted  to  the  court  for 
its  determination.  From  this  standpoint  the  statement  would  be  suffi- 
cient that  the  court  decides  in  favor  of  the  plaintiff  or  defendant.  This 
would  perhaps  satisfy  the  successful  party,  but  it  would  not  satisfy  the 
loser,  and  it  would  clearly  not  satisfy  public  opinion. 

The  reasons  upon  which  the  judgment  is  based  should  be  stated  and 
the  judgment  should  contain  the  names  of  the  judges  taking  part  in 
the  decision.  Such  are  the  requirements  of  Article  55,  reproducing  the 
like  provisions  of  Article  28  of  the  Draft  Convention  of  the  Court  of 
Arbitral  Justice.  Without  requiring  a  statement  of  the  reasons  leading 
to  the  judgment,  it  is  difficult  to  see  how  international  law  can  be  made, 
as  it  should,  and  assuredly  will  be  made  by  the  successful  operation  of 
the  International  Court  of  Justice. 

Article  56 

If  the  judgment  given  does  not  represent,  wholly  or  in  part, 
the  unanimous  opinion  of  the  judges,  the  dissenting  judges  shall 
be  entitled  to  have  the  fact  of  their  dissent  or  reservations  men- 
tioned. But  the  reasons  for  their  dissent  or  reservations  shall  not 
be  expressed  in  the  judgment. 

The  question  arises  whether  the  reasons  of  the  dissenting  judges 
shall  be  given.  As  to  this,  there  is  much  difference  of  opinion,  and 
practice  varies  in  different  countries  and  in  different  courts  of  justice. 
The  Committee  chose  the  mean  between  the  extreme  positions  which 
would,  on  the  one  hand,  require  dissenting  opinions  to  be  given,  and, 
on  the  other  hand,  forbid  the  expression  of  dissent. 

Therefore,  according  to  Article  56  of  the  project,  the  dissenting 
judges  have  the  right,  if  they  care  to  exercise  it,  to  a  statement  of  their 
dissent,  or  of  their  reservations  to  the  whole  or  a  part  of  the  judgment 
in  which  they  have  participated.  They  must,  however,  content  them- 
selves with  a  statement  of  their  dissent  or  reservations,  without  advanc- 
ing reasons  or  arguments  in  their  behalf.     In  this  way,  the  parties  in 


129 

litigation  are  in  a  position  to  know  what  part  of  the  judgment,  if  any, 
was  unanimous,  and  what  part  was  not,  and  public  opinion  will  be  able 
to  test  the  reasons  upon  which  the  opinion  of  the  majority  is  supported 
by  the  dissent  or  reservations  of  the  minority. 

Article  57 

The  judgment  shall  be  signed  by  the  president  and  by  the 
registrar.  It  shall  be  read  in  open  court,  due  notice  having  been 
given  to  the  agents. 

The  judgment,  whether  unanimous  or  reached  by  a  majority  of  the 
judges,  must  be  the  judgment  of  the  court,  and  that  there  may  be  no 
doubt  as  to  its  authenticity,  the  president  and  the  registrar  sign  it.  The 
act  of  each  is  purely  administrative,  as  the  registrar  has  taken  no  part 
in  the  proceedings  and  the  president  may  be  opposed  to  the  decision. 

This  requirement  is  taken  from  Article  28  of  the  Draft  Convention 
for  the  Court  of  Arbitral  Justice.  The  judgment,  as  is  usual,  is  to  be 
read  in  open  court,  in  the  presence  of  the  agents  if  they  care  to  be 
present;  in  their  absence,  if  duly  notified  to  be  present. 

No  authority  seems  necessar}'^  for  such  provisions,  but  it  is,  how- 
ever, to  be  found  in  Article  53  of  the  Pacific  Settlement  Convention, 
Article  80  of  the  revision  thereof  of  1907,  and  Article  45  of  the  Prize 
Court  Convention. 

Article  58 

The  judgment  is  final  and  without  appeal.  In  the  event  of 
uncertainty  as  to  the  meaning  or  scope  of  the  judgment,  the  court 
shall  construe  it  upon  the  request  of  any  party. 

Wliat  is  the  effect  of  the  judgment?  The  Permanent  Court  of  In- 
ternational Justice  may,  indeed,  be  a  court  of  first  instance,  but  it  has 
no  court  above  to  which  an  appeal  can  be  made.  Its  decision,  there- 
fore, is  meant  to  be  final  and  Article  58  so  declares. 

The  judgment,  however,  may  be  ambiguous  or  may  seem  so,  espe- 
cially to  the  loser.  Doubt  or  uncertainty  should  not  be  permitted  to 
exist.  The  judgment  may  be  wrong,  as  even  judges  err  betimes,  but  its 
meaning  must  be  clear,  certain  and  unmistakable.  Therefore,  to  this 
end.  Article  58  further  provides  that  the  court  may  be  called  upon  to 
interpret  its  judgment  at  the  request  of  any  one  of  the  litigating  parties. 
In  so  doing,  the  Committee  had  in  mind  Article  82  of  the  Pacific  Set- 
tlement Convention  of  1907,  which  provides  that,  "Any  dispute  arising 
between  the  parties  as  to  the  interpretation  and  execution  of  the  award 
shall,  in  the  a])sence  of  an  agreement  to  the  contrary,  be  submitted  to 
the  tribunal  which  pronounced  it." 


130 

Article  59 

An  application  for  revision  of  a  judgment  can  be  made  only 
when  it  is  based  upon  the  discovery  of  some  new  fact,  of  such  a 
nature  as  to  be  a  decisive  factor,  which  fact  was,  when  the  judg- 
ment was  given,  unknown  to  the  court  and  also  to  the  party 
claiming  revision,  always  provided  that  such  ignorance  was  not 
due  to  negligence. 

The  proceedings  in  revision  will  be  opened  by  a  judgment 
of  the  court  expressly  recording  the  existence  of  the  new  fact, 
recognizing  that  it  has  such  a  character  as  to  lay  the  case  open  to 
revision,  and  declaring  the  application  admissible  on  this  ground. 

The  court  may  require  previous  compliance  with  the  terms 
of  the  judgment  before  it  admits  proceedings  in  revision. 

No  application  for  revision  may  be  made  after  the  lapse  of 
five  years  from  the  date  of  the  sentence. 

It  must,  however,  not  be  forgotten  that  the  purpose  of  the  court  is 
to  do  justice.  And  in  the  words  attributed  to  a  great  President  of  the 
United  States,  whose  day  has  not  yet  passed,  "Nothing  is  settled 
until  it  is  settled  right."  This  remark  of  President  Lincoln,  aptly 
quoted  by  Mr.  Holls  in  the  First  Hague  Conference,  when  the  question 
of  revision  of  an  arbitral  award  was  under  discussion,  overcame  oppo- 
sition and  likewise  bore  fruit  on  the  present  occasion,  inasmuch  as 
Article  55  of  the  Hague  Convention  of  1899  embodied  in  Article  83  of 
the  revised  convention  of  1907,  forms  the  substance  of  Article  59  of  the 
present  project,  with  certain  modifications  of  form  and  additions  of 
substance  to  fit  it  to  a  changed  environment. 

The  original  article  of  the  Pacific  Settlement  Convention  permitted 
a  revision,  unless  there  was  an  agi'eement  to  the  contrary,  when  a  new 
fact  was  discovered  which  might  have  had  a  decisive  influence  on  the 
decision  if  it  had  been  known  to  the  court  and  to  the  party  claiming 
revision  before  the  decision  was  rendered.  Article  59  adds  that  igno- 
rance of  the  fact  was  not  due  to  negligence  of  the  party. 

The  original  article  of  the  Pacific  Settlement  Convention  stated  that 
the  compromis,  or  special  agreement,  submitting  the  case  to  arbitration, 
should  fix  the  period  within  which  "the  demand  for  revision  should  be 
made.  Inasmuch  as  the  Court  of  Justice  proceeds  without  a  special 
agreement  or  compromis,  the  project  fixes  the  date  within  five  years  of 
rendering  judgment. 

The  Advisory  Committee  wisely  permitted  the  court  to  require,  as 
a  condition  precedent  to  revision,  compliance  with  the  terms  of  the 
judgment.  The  judgment  therefore  speaks  from  its  delivery,  even 
though  it  be  subject  to  revision. 


131 

Article  60 

Should  a  state  consider  that  it  has  an  interest  of  a  legal 
nature  which  may  be  affected  by  the  decision  in  the  case,  it  may 
submit  a  request  to  the  court  to  be  permitted  to  intervene  as  a 
third  party. 

It  will  be  for  the  court  to  decide  upon  this  request. 

So  far,  the  project  has  confined  its  attention  to  the  original  parties 
to  the  controversy,  or  to  the  parties  which  have  laid  their  case  before 
the  court,  or  to  the  case  as  presented  by  the  plaintiff  if  the  defendant 
does  not  appear  and  contest  the  case.  The  Committee,  however,  fore- 
saw that  third  parties  might  be  interested  either  at  the  beginning  or 
in  a  subsequent  phase  of  the  case.  Therefore,  Article  38  requires  the 
registrar  not  only  to  notify  the  parties  mentioned  in  the  application, 
against  which  suit  w^as  begun,  but  also  to  notify  the  members  of  the 
League  of  Nations,  through  its  Secretary  General.  Article  60  provides 
that  a  party  claiming  a  legal  interest  in  the  cause  can  request  the  court 
to  permit  it  to  intervene.  Undoubtedly  the  permission  will  be  granted, 
provided  the  request  set  forth  an  interest  of  a  legal  nature,  inasmuch 
as  the  court  is  a  judicial,  not  a  political  body. 

Whether  the  state  desiring  to  intervene  has  an  interest,  and  whether 
the  interest  be  of  a  legal  nature,  may  often  give  rise  to  a  difference  of 
opinion.  The  question  must  be  decided,  and  under  Article  60,  it  is  to 
be  decided  by  the  court.  Inasmuch,  however,  as  only  parties  to  the 
judgment  are  bound  by  it,  and  only  those  are  parties  who  are  parties  to 
the  record,  it  is  very  desirable  that  all  states  claiming  interest  should 
be  before  the  court,  so  that  its  decision  affecting  all  parties  in  interest 
should  bind  all.    Interest  reipiihlicae  lit  sit  finis  litiiim. 

Article  61 

Whenever  the  construction  of  a  convention,  in  which  states 
other  than  those  concerned  in  the  case  are  parties,  is  in  question, 
the  registrar  shall  notify  all  such  states  forthwith. 

Every  state  so  notified  has  the  right  to  intervene  in  the  pro- 
ceedings; but  if  it  uses  this  right,  the  construction  given  by  the 
judgment  will  be  as  binding  upon  it  as  upon  the  original  parties 
to  the  dispute. 

There  is  a  special  case  in  which  many  nations  may  be  interested, 
and  in  which  each  has  a  right  to  intervene  without  requiring  the  per- 
mission of  the  court.  This  is  the  case  which  the  distinguished  Dutch 
jurist,  Mr.  Asser,  laid  before  the  First  Hague  Conference,  by  which  it 
was  considered  and  incorporated  in  Article  56  of  the  Pacific  Settlement 


132 

Convention.  It  was  likewise  discussed  at  the  Second  Hague  Conference 
and  Article  56  was  adopted  with  trifling  changes  as  Article  84  of  the 
revised  convention.  This  article,  which  follows  in  full,  is,  as  will  be 
observed,  the  basis — indeed,  more  than  the  basis — of  Article  61  of  the 
project: 

The  award  is  not  binding  except  on  the  parties  in  dispute. 

When  it  concerns  the  interpretation  of  a  convention  to  which  Powers 
other  than  those  in  dispute  are  parties,  they  shall  inform  all  the  signatory 
Powers  in  good  time.  Each  of  these  Powers  is  entitled  to  intervene  in 
the  case.  If  one  or  more  avail  themselves  of  tliis  right,  the  interpreta- 
tion contained  in  the  award  is  equally  binding  on  them. 

The  means  is  thus  provided  by  virtue  whereof  any  party  to  what 
is  sometimes  called  a  multilateral  convention  can  take  part  in  a  dis- 
pute concerning  its  meaning,  and  in  which  it  was  not  originally  in- 
volved, in  order  to  present  its  views  to  the  court  and  eventually  to  make 
them  prevail. 

If  a  third  party  does  not  avail  itself  of  the  right  to  intervene,  al- 
though notified  in  due  time  of  the  cause  of  action,  it  certainly  prejudices 
its  case,  if  it  be  minded  in  the  future  to  appeal  to  the  court  in  a  case 
arising  out  of  this  convention.  It  is,  to  be  sure,  not  legally  bound,  but 
in  the  forum  of  morals  it  could  undoubtedly  be  taxed  with  negligence 
and  accused  with  good  reason  of  sleeping  upon  its  rights 

Article  62 

Unless  otherwise  decided  by  the  court,  each  party  shall  bear 
its  own  costs. 

Who  is  to  pay  the  costs  of  the  suit  before  the  Permanent  Court  of 
International  Justice?  The  expenses  of  the  court  as  such,  are  to  be 
borne  by  the  League  of  Nations,  according  to  Article  30  of  the  project. 
But  expenses  of  the  parties  are  not  expenses  of  the  court,  and  it  would 
seem  that  each  party  should  bear  its  own  expenses. 

There  may  be  cases  in  which  this  rule,  fair  upon  its  face,  would  be 
inequitable  in  practice.  The  Committee  was  of  this  opinion,  and  while 
adopting  the  general  rule  that  each  party  should  pay  its  own  costs, 
nevertheless,  allowed,  by  Article  62  of  the  project,  the  court  to  decide 
otherwise,  in  its  discretion  and  according  to  its  sense  of  justice. 

Execution  of  the  Judgment  of  the  Court 

It  might  be  expected  that  the  section  of  the  project  dealing  with 
procedure  would  end  with  an  article  on  execution.     There  is,  however, 


133 

none.  This  does  not  mean  that  the  Advisory  Committee  overlooked  the 
matter.  It  was  considered  in  the  informal  sessions  devoted  to  proce- 
dure. After  discussion,  the  opinion  was  expressed  in  favor  and  against 
an  article  on  the  subject,  but  in  the  end  the  view  prevailed  that  it  was 
the  duty  of  the  court  to  find  the  facts  involved  in  a  concrete  case  before 
it  and  to  apply  the  appropriate  rules  of  law  to  the  facts  as  found.  Exe- 
cution, as  the  name  implies,  belongs  to  the  executive  and  should  be  left 
where  it  belongs  in  the  domain  of  politics  and  of  expediency. 

The  Committee  tentatively  adopted  an  article  to  the  effect  that  the 
parties  should  promptly  notify  the  Secretary  General  or  the  court  of 
the  execution  of  the  judgment  or  the  steps  taken  to  its  execution.  On 
reflection,  the  Drafting  Committee  recommended  that  this  highly  proper 
but  imperfect  article  should  be  omitted.  The  Advisory  Committee  was 
also  and  unanimously  of  the  same  opinion. 


RESOLUTIONS  OF  THE  ADVISORY  COMMITTEE 

I. — An  International  Conference  in  Continuation  of  the  First  and  Sec- 
ond Hague  Conferences  to  Meet  at  Stated  Intervals  for  the  Ad- 
vancement of  International  Law. 

The  Advisory  Committee  of  Jurists,  assembled  at  The  Hague 
to  draft  a  plan  for  a  Permanent  Court  of  International  Justice, 

Convinced  that  the  security  of  States  and  the  well-being  of 
peoples  urgently  require  the  extension  of  the  empire  of  law  and 
the  development  of  all  international  agencies  for  the  administra- 
tion of  justice,  recommends: 

I.  That  a  new  conference  of  the  nations  in  continuation  of 
the  first  two  conferences  at  The  Hague  be  held  as  soon  as  prac- 
ticable for  the  following  purposes: 

1.  To  restate  the  established  rules  of  international  law,  es- 

pecially, and  in  tlie  first  instance,  in  the  fields  affected  by 
the  events  of  the  recent  war. 

2.  To  formulate  and  agree  upon  the  amendments  and  addi- 

tions, if  any,  to  the  rules  of  international  law  shown  to 
be  necessary  or  useful  by  the  events  of  the  war  and  the 
changes  in  the  conditions  of  international  life  and  inter- 
course which  have  followed  the  war. 

3.  To  endeavor  to  reconcile  divergent  views  and  secure  gen- 

eral agreement  upon  the  rules  which  have  been  in  dis- 
pute heretofore. 


134 

4.  To  consider  the  subjects  not  now  adequately  regulated  by 
international  law,  but  as  to  which  the  interests  of  inter- 
national justice  require  that  rules  of  law  shall  be  de- 
clared and  accepted. 

II.  That  the  Institute  of  International  Law,  the  American  In- 
stitute of  International  Law,  the  Union  Juridique  Internationale, 
the  International  Law  Association,  and  the  Iberian  Institute  of 
Comparative  Law  be  invited  to  prepare  with  such  conference  or 
collaboration  inter  sese  as  they  may  deem  useful,  projects  for 
the  w^ork  of  the  Conference  to  be  submitted  beforehand  to  the 
several  Governments  and  laid  before  the  Conference  for  its  con- 
sideration and  such  action  as  it  may  find  suitable. 

III.  That  the  Conference  be  named  Conference  for  the  Ad- 
vancement of  International  Law. 

IV.  That  this  Conference  be  followed  by  further  successive 
conferences  at  stated  intervals  to  continue  the  work  left  un- 
finished. 

The  First  Hague  Conference,  in  which  twenty-six  Powers  were  rep- 
resented, was  proposed  by  the  Czar  of  Russia  in  1898.  It  was  invited 
by  the  Netherland  Government  and  met  at  The  Hague  on  the  18th  day 
of  May,  1899.  It  adjourned  on  July  29,  1899,  having  to  its  credit  con- 
ventions: (1)  for  the  pacific  settlement  of  international  disputes,  (2) 
regarding  the  laws  and  customs  of  war  on  land,  (3)  for  the  adapta- 
tion to  maritime  warfare  of  the  principles  of  the  Geneva  Convention; 
and  three  declarations  prohibiting  (1)  the  launching  of  projectiles  and 
explosives  from  balloons,  (2)  the  diffusion  of  asphyxiating  gases,  and 
(3)  the  use  of  dum  dum  bullets.  The  conference  also  adopted  a  resolu- 
tion expressing  the  opinion  that  the  restriction  of  military  charges  is 
extremely  desirable,  and  it  formulated  voeux.:  (1)  for  the  revision  of  the 
Geneva  Convention,  (2)  that  the  questions  of  the  rights  and  duties  of 
neutrals  may  be  inserted  in  the  program  of  a  conference  in  the  near 
future,  (3)  that  questions  with  regard  to  rifles  and  naval  guns  may  be 
studied  by  the  governments  with  the  object  of  coming  to  an  agreement 
respecting  the  employment  of  new  types  and  calibers,  (4)  that  the  gov- 
ernments examine  the  possibility  of  an  agreement  as  to  the  limitation 
of  armaments  and  war  budgets,  and  that  the  proposals  for  (5)  the  in- 
violability of  private  property  in  naval  warfare  and  (6)  for  the  settle- 
ment of  the  question  of  the  bombardment  of  ports,  towns  and  villages 
by  a  naval  force,  may  be  referred  to  a  subsequent  conference  for  con- 
sideration. 

If  it  be  true,  as  Dr.  Johnson  has  said,  that  "War  and  peace  divide 
the  business  of  the  world,"  the  Hague  Conference  showed  itself  dis- 
posed to  take  up  and  to  consider  this  business.  Its  success  in  handling 
the  problems  arising  out  of  this  business  convinced  its  members  and  the 


135 

public  at  large  that  the  Hague  Conference  could  be  trusted  to  do  the 
world's  business,  in  so  far  as  this  could  be  done  by  an  international 
gathering.  It  was  believed  that  this  conference  would  be  the  first  of 
many,  and  its  distinguished  president,  Baron  Staal,  first  delegate  of 
Russia,  thought  that  another  conference  would  meet  in  the  year  ensuing 
after  its  adjournment.  Time  slipped  away  without  a  call  for  a  new 
conference,  and  Russia  found  itself  involved  in  a  war  with  Japan. 
President  Roosevelt  sounded  the  nations  in  1904  as  to  their  willingness 
again  to  meet  in  conference  at  The  Hague.  They  were  willing.  The 
war  between  Russia  and  Japan  ended  in  1905.  Russia  asked  the  Nether- 
lands to  convoke  the  conference  which  Mr.  Roosevelt  had  proposed.  It 
met  at  The  Hague,  June  15,  1907,  with  representatives  of  forty-four 
states  and  adjourned  October  18,  1907,  having  to  its  credit  revisions  of 
the  conventions:  (1)  for  the  pacific  settlement  of  international  disputes, 
(2)  respecting  the  laws  and  customs  of  war  on  land,  (3)  for  the  adapta- 
tion to  naval  war  of  the  principles  of  the  Geneva  Convention,  and  (4) 
of  the  declaration  prohibiting  the  discharge  of  projectiles  and  explo- 
sives from  balloons.  In  addition  the  conference  adopted  new  conven- 
tions: (1)  respecting  the  limitation  of  the  employment  of  force  for  the 
recovery  of  contract  debts,  (2)  relative  to  the  opening  of  hostilities,  (3) 
respecting  the  rights  and  duties  of  neutral  Powers  and  persons  in  case 
of  war  on  land,  (4)  relative  to  the  status  of  enemy  merchant  ships  at 
the  outbreak  of  hostilities,  (5)  relative  to  the  conversion  of  merchant 
ships  into  war-ships,  (6)  relative  to  the  laying  of  automatic  submarine 
contact  mines,  (7)  respecting  bombardment  by  naval  forces  in  time  of 
war,  (8)  relative  to  certain  restrictions  upon  the  right  of  capture  in 
naval  war,  (9)  relative  to  the  creation  of  an  International  Prize  Court, 
and  (10)  concerning  the  rights  and  duties  of  neutral  Powers  in  naval 
war.  A  declaration  admitting  the  principle  of  compulsory  arbitration, 
and  declaring  that  certain  disputes,  particularly  those  relating  to  the 
interpretation  and  application  of  international  agreements,  may  be  sub- 
mitted to  compulsory  arbitration  without  any  restriction  was  unani- 
mously adopted.  The  resolution  of  1899  in  regard  to  the  limitation  of 
military  expenditure  was  unanimously  readopted,  and  the  following 
uceiix  expressed  the  wish:  (1)  that  the  signatory^  Powers  adopt  the  an- 
nexed draft  convention  for  the  creation  of  a  Court  of  Arbitral  Justice 
and  the  bringing  it  into  force  as  soon  as  an  agreement  has  been  reached 
respecting  the  selection  of  the  judges  and  the  constitution  of  the  court; 
(2)  that  in  case  of  war,  the  responsilile  authorities  ensure  and  safe- 
guard the  maintenance  of  pacific  relations  between  the  inhabitants  of 
the  belligerent  states  and  neutral  countries,    (3)    that  the  position  of 


136 

foreigners  as  regards  military  charges  should  be  regulated  by  special 
treaties,  and  (4)  that  the  preparation  of  regulations  relative  to  the  laws 
and  customs  of  naval  war  should  figure  in  the  program  of  the  next 
conference. 

The  final  recommendation  of  the  Second  Hague  Conference  is  so 
pertinent  to  the  Resolution  of  the  Advisory  Committee  now  under  con- 
sideration that  it  deserves  quotation  in  full.     It  reads  as  follows: 

Finally,  the  Conference  recommends  to  the  Powers  the  assembly 
of  a  Third  Peace  Conference,  which  might  be  held  within  a  period  cor- 
responding to  that  which  has  elapsed  since  the  preceding  Conference, 
at  a  date  to  be  fixed  by  the  common  agreement  between  the  Powers,  and 
it  calls  their  attention  to  the  necessity  of  preparing  the  program  of  this 
Third  Conference  a  sufficient  time  in  advance  to  ensure  its  delibera- 
tions being  conducted  with  the  necessary  authority  and  expedition. 

In  order  to  attain  this  object  the  Conference  considers  that  it  would 
be  very  desirable  that,  some  two  years  before  the  probable  date  of  the 
meeting,  a  preparatory  committee  should  be  charged  by  the  govern- 
ments with  the  task  of  collecting  the  various  proposals  to  be  submitted 
to  the  Conference,  of  ascertaining  what  subjects  are  ripe  for  embodi- 
ment in  an  international  regulation,  and  of  preparing  a  program  which 
the  governments  should  decide  upon  in  sufficient  time  to  enable  it  to 
be  carefully  examined  by  the  countries  interested.  This  committee 
should  further  be  intrusted  with  the  task  of  proposing  a  system  of  or- 
ganization and  procedure  for  the  Conference  itself. 

In  pursuance  of  the  voeu  that  a  Third  Conference  at  The  Hague 
should  assemble  approximately  in  the  year  1915,  various  nations  had 
appointed  committees  to  prepare  for  that  Conference,  its  organization, 
its  procedure,  its  program.  But  these  preparations  were  abruptly 
halted  by  the  outbreak  of  the  World  War  in  1914.  The  victory  of  the 
Allied  and  Associated  Powers  in  November,  1918,  made  the  world  ready 
for  peace,  and  the  series  of  peace  treaties  concluded  in  1919  paved  the 
way  for  the  meeting  of  the  Advisory  Committee  of  Jurists  at  The  Hague 
in  1920. 

Farsighted  observers  in  the  United  States  and  elsewhere  had  pre- 
viously advocated  the  resumption  of  the  conferences  at  The  Hague. 
The  Executive  Council  of  the  American  Society  of  International  Law, 
upon  the  initiative  of  its  President,  Mr.  Root,  on  April  17,  1919,  unani- 
mously 

Resolved,  That  the  Executive  Council  of  the  American  Society  of 
International  Law  urges  upon  the  Conference  at  Paris  the  adoption  of 
a  provision  by  which  there  shall  be  called  a  general  conference  of  the 
Powers  to  meet  not  less  than  two  years  nor  more  than  five  years  after 


137 

the  signing  of  this  convention  for  the  purpose  of  reviewing  the  condi- 
tion of  international  law,  and  of  agreeing  upon  and  stating  in  authori- 
tative form  the  principles  and  rules  thereof;  and  that  thereafter,  regular 
conferences  for  that  purpose  shall  be  called  and  held  at  stated  times. 

This  resolution  was  transmitted  to  the  American  Commission  to 
tlie  Paris  Conference,  but  that  body  apparently  did  not  urge  it  upon  the 
conference.  In  any  event,  no  action  of  the  kind  was  taken.  The  Cove- 
nant of  the  League  of  Nations,  adopted  by  the  Paris  Conference  and 
forming,  as  it  were,  tlie  preamble  to  the  Treaty  of  Versailles,  directed 
the  Council  of  the  League  to  prepare  plans  for  the  establishment  of  a 
permanent  court  of  international  justice.  The  Advisory  Committee  of 
Jurists  requested  by  the  Council  to  prepare  plans  for  the  establishment 
of  this  court  met  at  The  Hague,  June  16,  1920,  and  adopted  on  July  22, 
a  project  for  the  establishment  of  a  Permanent  Court  of  International 
Justice.  This  court  is  to  be  a  court  of  justice,  to  administer  the  rules 
of  law  agreed  upon  by  nations,  to  supply  this  law,  where  it  is  lacking, 
and  to  enlarge  the  jurisdiction  of  the  court,  so  that,  little  by  little,  it 
may  be  competent  to  accept  and  to  decide  all  disputes  of  nations  of  a 
justiciable  character,  according  to  the  principles  of  justice  stated  in 
rules  of  law,  adopted  by  all  the  nations  meeting  regularly  and  at  stated 
intervals  in  conference.  The  Committee  of  Jurists  unanimously  adopted 
this  resolution  drafted  by  Mr.  Root,  proposed  jointly  by  him  and  Baron 
Descamps,  recommending  at  the  earliest  practicable  date  a  new  con- 
ference of  the  nations,  in  continuation  of  the  First  and  Second  Con- 
ferences at  The  Hague,  for  the  advancement  of  international  law,  to  be 
followed  at  stated  and  frequent  intervals  by  like  conferences,  in  order 
to  continue  the  work  begun  and  left  unfinished  by  their  predecessors. 

Mr.  Root's  original  draft  concluded  with  a  statement  justifying  the 
call  and  stating  in  general  terms  the  benefits  which  would  inevitably 
accrue  from  the  successful  labors  of  successive  conferences.  This  part 
of  the  resolution,  which  the  Committee  had  already  adopted,  was 
omitted  at  the  request  of  the  Japanese  member,  who  had  on  various 
occasions  expressed  himself  as  averse  to  the  extension,  at  this  time  and 
under  present  conditions,  of  the  field  of  obligatory  arbitration  or  obliga- 
toiy  jurisdiction  of  a  court  of  justice.  This  portion  of  the  resolution 
was  thus  worded: 

Your  Committee  has  reported  a  project  for  a  Permanent  Court  with 
general  jurisdiction  for  the  decision  of  all  justiciable  questions  between 
states  submitted  to  it  with  the  voluntary  consent  of  parties,  and  with 
obligatory  jurisdiction  limited  to  the  decision  of  the  questions  described 
in  the  13th  article  of  the  Covenant  of  the  League  of  Nations  as  arising 
under  treaties  and  under  the  accepted  rules  of  international  law. 


138 

It  is  believed  that  the  operation  of  the  conferences  now  recom- 
mended will  be  continually  to  extend  the  domain  of  international  law 
and  thus  continually  to  enlarge  the  obligatory  jurisdiction  of  the  court 
without  losing  the  definite  limits  necessary  to  guard  against  the  arbi- 
trary exercise  of  power. 

And  it  is  believed  that  these  institutions  for  the  application  of  law 
to  the  affairs  of  nations,  together  with  the  present  permanent  Court  of 
Arbitration  at  The  Hague  retained  for  the  disposal  of  questions  properly 
subjects  for  arbitration  as  distinguished  from  strictly  judicial  action, 
will  constitute  a  complete  system  for  the  effective  and  progressive  ob- 
servance of  the  rule  of  public  right  as  the  controlling  force  in  the  inter- 
course of  nations. 

It  will  be  observed  that  the  resolution  of  the  Committee  as  voted 
invites  various  bodies  of  an  international  nature,  such  as  the  Institute 
of  International  Law,  the  American  Institute  of  International  Law,  the 
Union  Juridiqne  Internationale,  the  International  Law  Association,  and 
the  Iberian  Institute  of  Comparative  Law,  "to  prepare  with  such  con- 
ference or  collaboration  inter  sese  as  they  may  deem  useful,  projects 
for  the  work  of  the  Conference  to  be  submitted  beforehand  to  the  several 
governments  and  laid  before  the  conference  for  its  consideration  and 
such  action  as  it  may  find  suitable." 

The  experience  that  the  world  has  had  with  the  Conference  at 
Paris,  composed  of  nationally-minded  instead  of  internationally-minded 
men,  has  suggested  in  more  than  one  quarter  the  advantage  of  consult- 
ing members  of  scientific  bodies,  the  acceptance  of  whose  work  depends 
solely  upon  its  merit  and  practicability.  Who  is  to  decide?  Not  the 
members  of  these  associations,  but  the  governments.  Therefore  their 
projects  are  to  be  submitted  to  the  governments,  and  laid  before  the 
conference,  composed  of  representatives  of  the  governments,  for  con- 
sideration and  such  action  as  it  may  find  suitable.  This  will  mobilize 
representative  publicists  of  various  nationalities.  It  will  enable  the 
nations  to  profit  by  their  work  if  it  is  valuable,  but  will  not  bind  them 
to  accept  it  unless  it  meets  with  their  approval.  It  can  help,  but  it 
cannot  hurt. 

Who  may  call  the  conference?  Any  authority  or  power  to  which 
the  world  will  listen.  The  Second  International  Peace  Conference  was, 
to  quote  the  opening  lines  of  its  Final  Act,  "proposed  in  the  first  in- 
stance by  the  President  of  the  United  States  of  America." 


139 

II. — A  High  Court  of  International  Justice  for  the  Trial  of  Offenses 
AGAINST  Public  Order  and  the  Law  of  Nations 

The  Advisory  Committee  of  Jurists,  assembled  at  The  Hague 
to  draft  a  plan  for  a  Permanent  Court  of  International  Justice, 

Having  considered  a  proposition  laid  before  it  by  its  presi- 
dent for  the  establishment  in  the  future  of  a  High  Court  of  In- 
ternational Justice,  conceived  in  these  terms : 

Article  1 

A  High  Court  of  International  Justice  is  hereby  established. 

Article  2 

This  court  shall  be  composed  of  one  member  for  each  state, 
to  be  chosen  by  the  group  of  delegates  of  each  state  represented  in 
the  court  of  arbitration. 

Article  3 

The  High  Court  of  Justice  shall  be  competent  to  try  crimes 
against  international  public  order  and  the  universal  law  of  na- 
tions, which  shall  be  referred  to  it  b}'  the  assembly  or  by  the 
Council  of  the  League  of  Nations. 

Article  4 

The  court  shall  have  power  to  define  the  nature  of  the  crime, 
to  fix  the  penalty  and  to  prescribe  the  appropriate  means  of  carry- 
ing out  the  judgment.  It  shall  formulate  its  own  rules  of  pro- 
cedure. 

Recognizing  the  vast  importance  of  this  proposition. 
Recommends  the  examination  thereof  to  the  Council  and  the 
Assembly  of  the  League  of  Nations. 

In  laying  before  the  Advisory  Committee  a  proposal  to  establish,  in 
the  future  and  for  the  future,  a  high  court  of  international  justice  to 
take  cognizance  of  crimes  against  universal  public  order  and  against 
the  universal  law  of  nations.  Baron  Descamps  stated  that  the  failure  of 
the  Conference  at  Paris  to  create  such  a  tribunal,  due  to  the  opposition 
of  the  American  and  Japanese  representatives  in  the  Commission  on 
Responsibilities,  prevented  the  punishment  of  Emperor  William  II  for 
the  invasion  of  Belgium  and  of  the  German  officers  for  the  crimes  and 
violations  of  international  law  which  they  were  alleged  to  have  com- 
mitted in  the  course  of  the  World  War.  It  is  true  that  the  attempt 
failed  primarily  because  of  the  opposition  of  the  American  members, 
who  felt  themselves  bound  by  a  decision  of  the  Supreme  Court  of  the 
United  States  in  the  leading  case  of  United  States  v.  Hudson  (7  Cranch 
32,  34),  decided  in  1812,  which  held  that  to  make  an  act  a  crime  and 


140 

punishable  as  such,  "the  legislative  authority  of  the  Union  must  first 
make  an  act  a  crime,  aflix  a  punishment  to  it,  and  declare  the  Court 
that  shall  have  jurisdiction  of  the  offence."  In  the  dissenting  opinion 
which  they  felt  obliged  to  file  with  the  records  of  the  Commission  on 
Responsibilities,  the  American  members  added,  by  way  of  comment 
upon  this  decision,  "that  what  is  true  of  the  American  states  must  be 
true  of  this  looser  union  which  we  call  the  Society  of  Nations";  that 
they  knew  "of  no  international  statute  or  convention  making  a  viola- 
tion of  the  laws  and  customs  of  war — not  to  speak  of  the  laws  or  prin- 
ciples of  humanity — an  international  crime,  afiixing  a  punishment  to  it, 
and  declaring  the  court  which  has  jurisdiction  over  the  offence."^ 

It  will  be  observed  that  Baron  Descamps'  High  Court  is  to  be  con- 
stituted by  the  Society  of  Nations,  that  is  to  have  jurisdiction  of  crimes 
against  public  international  order  and  the  law  of  nations,  that  the 
penalty  for  the  crime  is  to  be  prescribed  and  the  means  of  executing  the 
judgment  stated.  Because  of  these  provisions  and  because  also  of  the 
fact  that,  if  created,  it  would  be  applied  to  the  future  and  would  not 
have  jurisdiction  of  any  offense,  real  or  alleged,  committed  before  its 
institution,  the  Advisory  Committee  recommended  the  project  to  the 
consideration  of  the  Council  and  the  Assembly  of  the  League  of  Nations. 

III.- — The  Installation  of  the  Academy  of  International  Law  at  the 

Hague  Peace  Palace 

The  Advisory  Committee  of  Jurists,  assembled  at  The  Hague 
to  draft  a  plan  for  a  Permanent  Court  of  International  Justice, 

Gladly  avails  itself  of  this  opportunity  to  express  the  hope 
that  the  Academy  of  International  Law,  founded  at  The  Hague 
in  1913,  and  whose  operation  has,  owing  to  circumstances,  been 
interrupted,  shall,  as  soon  as  possible,  enter  upon  its  activity  along- 
side of  the  Permanent  Court  of  Arbitration  and  the  Permanent 
Court  of  International  Justice,  in  the  Peace  Palace  at  The  Hague. 

In  his  address  at  the  Second  Hague  Peace  Conference,  of  which  he 
was  president,  and  in  the  third  of  its  plenary  sessions  held  on  July  20, 
1907,  Mr.  Nelidow  said : 

Before  closing  I  wish  to  mention  a  certain  communication,  or  rather 
an  interesting  suggestion  which  has  reached  me.  Mr.  Richard  Fleischer, 
editor  of  the  Deutsche  Reviic,  sent  me  a  number  of  his  journal,  in  which 


■^  Violation  of  the  Laws  and  Customs  of  War.  Reports  of  Majority  and  Dis- 
senting Reports  of  American  and  Japanese  Members  of  the  Commission  of  Responsi- 
bilities, Conference  of  Paris,  1019  (Pamphlet  No.  32,  Division  of  International  Law, 
Carnegie  Endowment  for  International  Peace),  p.  75. 


141 

Prolessor  Ottried  Nippold,  of  Berne,  recommends  to  the  Conference  the 
creation  at  The  Hai^ue,  near  the  tribunal  of  arbitration,  of  a  central 
school  of  international  law,  which  would  aid  in  spreading  judicious 
notions  on  that  subject,  and  in  teaching  them  to  those  who  would  later 
be  called  upon  for  their  application. 

This  would  be,  I  imagine,  a  course  of  law  at  an  academy  which 
would  study  and  preserve  its  principles  continually  changed  by  the 
usage  given  them  by  the  operation  of  the  supreme  tribunal  of  arbitra- 
tion; something  like  the  Asclepieion  founded  by  Hippocrates  on  the 
Island  of  Cos  for  medical  science. 

I  considered  it  my  duty  to  refer  to  this  interesting  suggestion,  be- 
cause in  my  opinion  it  is  pertinent  and,  were  the  idea  carried  out,  ca- 
pable of  rendering  great  aid  to  the  cause  which  we  all  serve.  Perhaps 
the  mention  made  of  it  here,  w^iich  I  trust  meets  the  approval  of  the 
Conference,  will  inspire  some  generous  benefactor  with  the  idea  of 
following  the  example  of  Mr.  Andrew  Carnegie. 

These  remarks  of  the  eminent  Russian  diplomatist*  did  not  fall 
upon  deaf  ears.  The  Endowment  for  International  Peace,  founded  by 
Mr.  Andrew  Carnegie,  took  up  the  project,  and  with  the  cooperation  of 
the  Institute  of  International  Law  and  with  the  approval  and  encourage- 
ment of  the  Dutch  Government,  founded  the  Academy  for  the  ver}' 
purposes  so  admirably  stated  by  Mr.  Nelidow,  to  be  installed  in  the 
Peace  Palace,  which  the  munificence  of  Mr.  Carnegie  had  meantime  es- 
tablished at  The  Hague,  and  of  which  the  cornerstone  was  laid  during 
the  sessions  of  that  very  conference. 

The  Academy  of  International  Law  and  Political  Sciences,  whose 
sessions  were  to  be  held  in  the  summer  under  the  direction  of  compe- 
tent instructors  of  different  nationalities  and  attended  by  students  from 
various  parts  of  the  world,  was  founded  on  the  eve  of  the  World  War, 
and  was  to  have  held  its  opening  session  in  the  fatal  month  of  August, 
1914. 

Useful  before,  it  can  be  more  useful  after  this  war,  when  the 
thoughts  of  nations  are  turned  to  peace  and  its  preservation  as  never 
before  within  the  memory  of  man  now  living.  The  path  of  peace  is  the 
path  of  justice,  and  the  world  may  look  forward  to  a  happier  future 
with  the  periodic  meetings  of  Conferences  at  The  Hague  for  the  Ad- 
vancement of  International  Law,  with  the  Permanent  Court  of  Arbitra- 
tion installed  at  the  Peace  Palace  at  The  Hague  for  tlie  settlement  of 
political  claims  which  have  baffled  the  foreign  offices  of  nations,  wath  a 
Permanent  Court  of  International  Justice  for  the  passionless  adminis- 
tration of  rules  of  law  to  be  esfablished  in  the  Peace  Palace,  and  with 
the  opening  of  an  Academy  of  International  Law  and  Political  Sciences 
in  which  the  labors  alike  of  Conference,  of  Court  of  Arbitration,  and 


142 

of  Court  of  Justice,  will  be  appreciated,  justice  expounded,  rules  of  law 
defined,  and  the  relations  of  nations  in  a  regulated  world  be  made 
known. 


CLOSING  SESSION  OF  THE  ADVISORY  COMMITTEE  OF  JURISTS, 

JULY  24,  1920 

The  articles  of  the  project  were  read  and  approved  one  by  one,  and 
the  project  as  a  whole  was  adopted  unanimously  on  July  22nd.  The 
Committee  adjourned  until  Friday  morning,  the  23rd,  in  order  to  allow 
the  reporter,  Mr.  de  Lapradelle,  the  eminent  professor  of  international 
law  of  the  University  of  Paris,  and  a  master  of  spoken  and  written 
French,  to  add  the  finishing  touches  to  his  report  and  to  put  it  in  accord 
with  the  final  form  of  the  project  and  its  provisions.  His  report  was 
presented  the  morning  of  the  23rd  and  was  read  by  him  page  by  page 
to  the  members  of  the  Committee,  who  made  sundry  modifications.  The 
reading  was  continued  in  the  afternoon  and  was  finished  the  morning 
of  July  24th.  Upon  motion  of  Mr.  Root  the  report  as  presented  and 
amended  was  unanimously  adopted. 

Mr.  Ricci-Busatti  thereupon  asked  how  the  result  of  the  Commit- 
tee's labors  was  to  be  presented  to  the  Council.  He  said  that  the  choice 
lay  between  the  President  and  the  Secretariat  and  he  asked  whether  it 
would  not  be  advisable  for  the  President  to  attend  the  forthcoming 
meeting  of  the  Council  at  San  Sebastian.  Lord  Phillimore  was  of  the 
opinion  that  the  Secretariat  ought  to  act  "as  go-between."  Mr.  Root, 
however,  was  of  the  contrary  opinion  and  made  the  following  three- 
fold proposal: 

1.  That  it  is  clear  from  the  terms  of  the  invitation  sent  to  members 

of  the  Committee,  that  the  Committee  must  communicate  the 
result  of  its  labors  to  the  Secretariat  of  the  League  of  Na- 
tions; 

2.  That  the  Committee  should  ask  its  Secretary  General  to   take 

steps  to  inform  the  Council,  that  any  further  information  or 
explanation  that  the  Council  might  wish  for,  would  be  sup- 
plied by  the  President  or  by  the  Reporter; 

3.  That  it  must  be  stated  in  the  proces-verbal  that  the  Committee 

has  no  wish  to  advocate  the  adoption  of  the  results  of  its 
labors.  Having  been  asked  to  give  its  opinion,  the  Commit- 
tee could  not  press  for  its  adoption  without  detracting  from 
its  dignity. 


143 

These  three  proposals  were  immediately  voted  upon  and  adopted. 
The  text  of  the  project  was  thereupon  signed  by  the  members  of  the 
Committee. 

The  three  resolutions  had  previously  been  adopted  in  substance, 
leaving  the  question  of  form  to  be  considered  at  a  later  meeting.  The 
form  of  each  having  been  modified  to  the  approval  of  the  Committee, 
each  one  was  put  to  a  vote  at  the  request  of  Mr.  Root,  and  each  one  was 
formally  and  unanimously  adopted.  The  three  resolutions  were  there- 
upon signed  by  each  of  the  members. 

The  task  had  been  accomplished  and  more  than  accomplished,  be- 
cause the  project  for  a  court  had  been  drafted,  a  resolution  providing 
for  an  endless  series  of  conferences  at  stated  periods  in  succession  to  the 
first  two  Hague  Conferences  recommended,  and  the  installation  of  the 
Academy  of  International  Law  in  the  Peace  Palace  at  The  Hague  urged. 
By  means  of  the  conferences  law  will  be  supplied  both  for  the  Perma- 
nent Court  of  Arbitration  and  the  Permanent  Court  of  International 
Justice,  to  be  applied  by  arbitrators  and  administered  by  magistrates. 
By  means  of  the  Academy  a  scientific  explanation  of  the  law  is  provided, 
through  masters  of  international  law  of  various  countries,  for  the  benefit 
of  arbitrators  of  the  Court  of  Arbitration,  magistrates  of  a  Permanent 
Court,  members  of  successive  conferences,  and,  in  a  word,  for  the  benefit 
of  mankind. 

"The  day  will  come,"  said  Mirabeau,  "when  Right  shall  be  the 
sovereign  of  the  world." 

At  three  o'clock  on  the  afternoon  of  July  24th,  the  Advisoiw  Com- 
mittee held  its  closing  session.  It  was  hoped  that  Mr.  Leon  Bourgeois 
would  be  present  at  the  closing  session  to  witness  the  fruition  of  the 
labors  of  the  Committee  as  he  had  welcomed  its  members  at  the  open- 
ing session  and  held  up  before  them  the  great  ideal  which  it  was  hoped 
they  would  realize.  Unable  to  attend,  although  invited  and  anxious  to 
do  so,  he  sent  the  following  telegram : 

Detained  in  the  French  Senate  by  the  daily  discussion  of  the  budget, 
I  deeply  regret  not  to  be  able  to  accept  the  invitation  of  the  Jurists' 
Committee  to  attend  their  official  closing  session  to-morrow  and  bring 
them  in  person  the  expression  of  the  gratitude  of  the  Council.  I  have 
not  yet  been  acquainted  with  the  projects  adoi)ted  by  the  Committee, 
but  the  incontestable  authority  of  its  members  makes  us  feel  sure  that 
their  resolutions  will  provide  the  Council  of- the  League  with  all  neces- 
sary elements  for  the  establishment  in  the  near  future  of  the  great  in- 
stitution which  is  so  powerfully  to  contribute  in  enforcing  the  rule  of 
right  in  the  world. - 


-League  of  Nations,  Official  Journal,  July-August,   lO^O,  p.  238. 


144 

Baron  Descamps,  President  of  the  Advisory  Committee,  delivered 
an  appropriate  closing  address,  which  is  not  only  that  but  a  report  of  the 
Committee  as  well.     It  follows  in  full: 

When  the  International  Committee  of  Jurists  named  by  the  Council 
of  the  League  of  Nations  to  prepare  a  plan  of  organization  for  a  Per- 
manent Court  of  International  Justice  met  for  the  first  time  in  public 
session  in  this  palace,  the  dominating  impression  of  all  the  members 
was  that  of  the  formidable  responsibility  which  they  had  assumed. 

Assuredly  we  had  at  that  time  every  desire  to  achieve  success,  but 
nevertheless  we  knew  that  the  best  intentions  and  the  most  earnest 
efforts  are  not  always  sufficient  to  bring  about  the  desired  results. 

We  had  a  very  clear  view  of  the  end  to  be  sought,  but  the  road 
which  had  to  be  followed  to  reach  it  was  a  long  one,  and  it  appeared  to 
us  to  be  sown  with  so  many  obstacles  that  we  could  only  ask  ourselves 
if  it  would  be  given  to  us  to  surmount  them. 

The  efforts  attempted  in  1907  by  a  world  assembly  of  the  Powers 
towards  the  organization  of  a  Permanent  Court  of  Arbitral  Justice  and 
in  the  direction  of  obligatory  arbitration  were  also  present  to  increase 
our  apprehensions. 

Having  in  mind  the  grandeur  of  the  task  to  be  accomplished  and  of 
the  progress  which  it  would  involve  for  the  good  of  all  nations,  we  dedi- 
cated ourselves  to  our  work,  guarding  ourselves  from  that  scepticism 
which  is  fashionable  among  many,  but  applying  to  the  study  of  the 
problems  which  stood  before  us  that  systematic  doubt  of  Descartes 
which,  when  well  applied,  is  a  powerful  instrument  of  light  and  the 
surest  guarantee  of  positive  results. 

We  commenced  by  long  exchanges  of  views  and  submitted  our 
opinions,  which  were  sometimes  divergent,  to  the  most  severe  examina- 
tion. In  just  such  an  atmosphere  of  free  and  living  criticism  the  hopes 
of  a  common  agreement  amongst  us  were  born  and  brought  into  full 
life. 

We  cannot  certainly  flatter  ourselves  upon  having  created  a  perfect 
work.  The  material  before  us  does  not  indeed  permit  of  that,  and  with- 
out doubt  it  is  fitting  to  recall  here  that  descriptive  expression  of  Por- 
talis  in  the  preliminary  part  of  the  Civil  Code:  "It  is  absurd  to  abandon 
one's  self  to  absolute  ideas  of  perfection  in  matters  which  are  suscepti- 
ble to  only  a  relative  degree  of  good."  But  we  nevertheless  have  the 
consciousness  of  being  able  to  propose  to  the  nations  a  general  system 
of  international  justice  whose  projection  in  the  future  it  seems  to  us 
should  be  happy  and  very  fruitful. 

In  the  work  of  elaboration  to  which  we  set  ourselves,  we  decided 
that  we  should  not  lock  ourselves  up  in  a  secret  chamber  inaccessible  to 
the  ordinary  man.  We  arc  glad  indeed  to  have  kept  the  general  public 
in  touch  with  our  discussions.  Now  that  these  discussions  are  termi- 
nated and  while  reserving,  as  is  necessary,  to  those  from  whom  author- 
ity flows,  the  text  of  the  sixty-two  articles  forming  the  project  agreed 
upon  by  us,  we  believe  we  can  nevertheless  respond  to  the  universal 


145 

interest  by  giving  in  a  resume  what  the  press  has  already  published 
and  in  outlining  in  a  general  manner  the  scheme  of  our  labors. 

Three  great  ])roblcms  have  especially  called  for  our  consideration. 

The  first  is  that  of  the  organization  of  the  Court  of  International 
Justice.  It  appeared  to  us  necessary  at  the  outset  to  set  off  sharply  the 
place  to  be  occupied  by  the  new  institution  amongst  the  different  bodies 
which  together  form  the  ensemble  of  international  jurisdiction.  It  was 
a  question  of  creating  a  Court  of  Justice  truly  permanent,  directly  ac- 
cessible to  the  parties  and  composed  of  magistrates  who  should  be 
independent,  chosen  without  regard  to  their  nationality  amongst  per- 
sons held  in  the  highest  moral  esteem  and  either  fulfilling  the  conditions 
required  in  their  respective  countries  for  the  exercise  of  the  highest 
judicial  positions,  or  being  jurists  well  known  for  their  competence  in 
international  law. 

It  is  an  existing  and  proved  institution,  the  present  Court  of  Arbi- 
tration of  The  Hague,  which  we  have  taken  as  the  basis  of  the  new 
organization  in  the  sense  that  we  have  deemed  it  wise  to  entrust  to  the 
members  of  this  court  the  task  of  proceeding  by  national  groups  to  the 
nomination  of  a  restricted  number  of  persons  capable  of  fulfilling  the 
functions  of  members  of  the  court.  And  we  have  asked  each  national 
group,  in  order  to  secure  the  best  advice  in  its  choice,  to  consult  in  the 
respective  countries  the  highest  court  of  justice,  the  faculties  and  schools 
of  law,  the  national  academies,  and  the  national  sections  of  interna- 
tional academies  devoted  to  the  study  of  law. 

Two  names  are  to  be  chosen  by  each  of  these  national  groups  with- 
out distinction  as  to  nationality. 

The  final  choice,  however,  is  left  to  the  Assembly  and  the  Council 
of  the  League  of  Nations  in  such  manner  that  the  election  of  the  mem- 
bers of  the  court  can  come  about  only  through  the  joint  action  of  the 
one  with  the  other. 

Moreover  we  have  adopted  a  series  of  provisions  which  on  the  one 
hand  directs  the  selections  toward  giving  representation  to  the  great 
divisions  of  civilization  and  to  the  principal  judicial  systems  of  the 
world  in  such  a  way  as  to  give  the  court  a  truly  world-wide  constitution. 
and  which  on  the  other  hand  provides  suggestions  in  cases  where  accord 
is  not  established  between  the  Council  and  the  Assembly. 

As  regards  the  functioning  of  the  court,  we  have  provided  for  the 
annual  formation  of  a  chamber  of  three  judges  called  to  sit  in  cases  of 
summary  procedure  when  the  parties  demand  it. 

The  second  capital  question  upon  which  our  attention  was  naturally 
centered  was  the  competence  of  the  court.  Our  principal  effort  was  di- 
rected towards  two  objectives:  First,  the  realization  of  a  system  of 
obligator^'  adjudication  in  differences  of  a  judicial  nature  and  by  ex- 
tension in  all  otlier  differences  so  far  as  they  may  be  covered  by  either 
general  or  special  conveiilions  l)ctween  the  i)arties.  The  declarations 
made  and  the  engagements  undertaken  by  tlie  Second  Peace  Conference 
in  1907  served  as  the  point  of  departure  in  this  connection. 

Next  we  attempted  to  lay  down  the  rules  of  judicial  interpretation 


146 

whicli  the  judges  should  apply  in  the  examination  of  cases  submitted  to 
them. 

The  third  point  was  the  object  of  very  particular  consideration, 
namely,  procedure  before  the  court.  We  believe  that  we  have  satisfac- 
torily solved  a  rather  large  number  of  questions  of  this  sort,  notably  as 
to  the  measures  to  be  taken  at  the  outset  of  certain  cases,  as  to  the  in- 
tervention of  third  parties  in  disputes,  and  as  to  the  conditions  under 
which  judgments  may  be  rendered  by  default. 

If  there  be  added  to  the  provisions  contained  in  the  project  two 
recommendations,  the  first  for  the  methodical  continuation  of  the  work 
undertaken  by  the  first  Hague  Conferences  for  the  advancement  of  inter- 
national law,  and  second  the  creation  of  a  High  Court  of  International 
Justice  to  judge  future  crimes  against  public  international  order  and 
international  law,  and  finally  the  recommendation  for  the  early  func- 
tioning of  the  Academy  of  International  Law  at  The  Hague,  we  shall  then 
have  a  general  view  of  the  field  in  which  our  activity  has  taken  place. 
The  reception  which  has  been  given  us  in  the  Capital  of  the  Netherlands 
by  Her  Majesty  the  Queen,  the  many  cordial  attentions  paid  us  by  the 
Foreign  Minister  and  the  vice  president  of  our  Committee  as  w^ell  as  by 
so  many  other  persons  and  institutions  whose  names  spring  to  my  mind 
at  this  moment  impose  upon  us  the  pleasant  duty  of  expressing  here  our 
feelings  of  deep  gratitude.  We  do  not  doubt  that  the  Council  of  the 
League  of  Nations  will  join  with  us  in  expressing  in  its  turn  its  grati- 
tude for  the  reception  given  its  representatives.  We  express  the  wish 
that  our  stay  upon  Dutch  soil  may  be  fruitful  for  the  well-being  of  the 
country  which  has  so  well  received  us,  for  the  rapproachement  of  peo- 
ples towards  international  justice  and  for  the  good  of  humanity.^ 

As  Mr.  van  Karnebeek,  Minister  of  Foreign  Affairs  of  the  Nether- 
lands, graced  the  opening  session  wdth  his  presence  and  charmed  its 
members  with  his  words,  so  at  the  closing  session,  he  appeared  as  the 
representative  of  the  devoted  little  country  of  the  Netherlands  to  express 
to  the  members  of  the  Committee,  upon  their  departure,  not  merely  the 
pleasure  of  entertaining  them  as  hosts  but  satisfaction  at  the  result  ac- 
complished. "The  Dutch  people,"  he  said,  "glad  and  proud  that  you 
should  have  honored  The  Hague  with  your  presence,  has  followed  the 
course  of  your  work  with  keen  interest.  The  interesting  communiques 
which  have  indicated  regularly  the  progress  made  and  the  nature  and 
bearings  of  your  deliberations,  have  enabled  the  public  to  form  an  idea 
of  the  difficulty  and  nature  of  your  task  and  to  appreciate  the  success 
which  has  crowned  your  concentrated^ efforts." 

Congratulating  them  upon  the  project  for  a  court  which  the  Advisory 
Committee  had  unanimously  adopted,  expressing  the  hope  that  it  would 
be  accepted  and  put  into  execution  in  the  near  future,  and  stating  that 


League  of  Nations,  Official  Journal,  July- August,  1920,  p.  288. 


147 

it  was  not  for  him  to  discourse  upon  the  merits  ol  their  work,  he  con- 
tinued : 

Please  allow  me,  however,  to  tell  you  that  the  honor  which  you  have 
paid  my  country  hy  naming  in  your  project  the  city  where  you  have 
met  as  the  future  seat  of  the  Court  of  Justice  has  been  deeplj'^  appre- 
ciated. Your  unanimous  agreement  in  this  matter  has  deeply  touched 
my  compatriots  and  1  am  sure  I  interpret  their  sincere  desire  to  sur- 
round the  great  institution  of  world  justice,  the  basis  of  which  you  have 
elaborated,  with  all  the  marks  of  respect  and  devotion  which  a  people, 
happy  to  serve  the  cause  of  international  law  with  all  its  strength,  is 
capable  of  giving  in  conformity  with  its  cherished  and  continuing  tradi- 
tions.^ 

Passing  \o  the  resolutions  of  the  Committee,  he  continued : 

The  wish  which  you  formulated  regarding  the  regular  convocation  of 
international  conferences,  called  as  successors  to  the  two  first  Hague 
Conferences,  and  that  which  aims  at  the  launching  into  activity  of  the 
Academy  of  International  Law%  founded  at  The  Hague  in  1913,  call  forth 
precious  memories  which  are  indeed  dear  to  us.  If  these  wishes  reach 
fulfilment,  your  conference.  Gentlemen,  will  have  contributed  largely  to 
the  surrounding  of  the  Court  of  Justice  with  a  system  of  international 
law  and  of  judicial  ideas  which  together  are  indispensable  to  the  reign 
of  law  in  international  relations.^ 

And  in  words  which  indicated  more  than  mere  willingness  to  secure 
the  meeting  of  conferences  for  the  advancement  of  law  in  succession  to 
the  First  and  Second  Hague  Conferences,  he  said,  "I  beg  to  assure  you 
that  the  Government  of  the  Queen  accepts  the  obligation  to  give  answer 
to  the  appeal  w^hich  you  have  made  for  its  aid  and  collaboration." 

Such  is  the  project  drafted  by  the  Advisory  Committee  for  the 
selection  of  the  judges,  the  composition,  the  jurisdiction  and  procedure 
of  an  International  Court  of  Justice  which  the  members  of  the  Advisory 
Committee  were  invited  to  prepare  and  which  they  actually  prepared  in 
the  Peace  Palace  at  The  Hague.  Such  are  the  resolutions  which  the 
Committee  drafted  and  adopted. 

It  will  be  observed  that  the  proposed  Permanent  Court  of  Interna- 
tional Justice  depends  for  its  creation  upon  the  approval  of  the  Council 
and  the  Assembly  of  the  League  of  Nations,  and  its  continuance  and  suc- 
cessful operation  may  likewise  de])end  upon  the  existence  of  the  League. 
If  the  League  continues  and  grows  in  strength  antl  power,  usefulness 
and  influence,  as  its  partisans  hope  and  expect,  the  court,  as  its  organ. 


*  League  of  Nations,  Official  Journal,  July-August,  1920,  p.  240. 
^  Ibid.,  p.  21.]. 


148 

will  be  in  no  danger.  If,  on  the  contrary,  the  League  should  decline 
and  cease  to  exist,  what  of  the  court?  Will  it  drop  by  the  wayside? 
Not  necessarily.  One  of  the  Conferences  for  the  Advancement  of  Inter- 
national Law  recommended  by  the  Advisory  Committee  of  Jurists  would 
only  need,  in  so  far  as  the  court  is  concerned,  to  invest  the  diplomatic 
representatives  of  the  nations  accredited  to  The  Hague  with  the  func- 
tions of  the  Assembly  of  the  League,  and  an  executive  committee  of  these 
diplomatic  representatives,  composed  as  is  the  Council,  if  they  so  de- 
sire, with  the  functions  of  the  Council  in  the  matter  of  the  court. 

All  roads,  we  are  informed,  lead  to  Rome.  It  is  fortunate  for  the 
administration  of  international  justice  that  more  than  one  road  leads 
to  The  Hague. 

I  am,  gentlemen. 

Very  respectfully  yours, 

James  Brown  Scott, 
Secretary  of  the  Carnegie  Endowment  for  International  Peace, 
Director  of  its  Division  of  International  Law. 

The  Hague,  Holland, 
July  24, 1920. 


149 


Annex  A 


PROJECT  FOR  A  PERMANENT  COURT  OF   INTERNATIONAL 

JUSTICE 


Avant-Projet  pour  V etablissement 
de  la  Cour  Permanente  de  Jus- 
tice Internacionale  visee  a  V Ar- 
ticle 1^  du  Pacte  de  la  Societe 
des  Nations  presente  au  Conseil 
de  la  Societe  par  le  Comite  Con- 
sultatif  de  Juristes.^ 

Article  1 
Independaniment  de  la  Cour 
d' Arbitrage,  organisee  par  les  Con- 
ventions de  La  Have  de  1899  et 
1907,  et  des  Tribiinaux  speciaux 
d'Arbitres,  auxquels  les  Etats  de- 
meurent  toujours  libres  de  confier 
la  solution  de  leurs  differends,  il 
est  institue,  conformement  a  I'ar- 
ticle  14  du  Pacte  de  la  Societe  des 
Nations,  une  Cour  Permanente  de 
Justice  Internationale,  directeinent 
accessible  aux  parties. 


Draft-Scheme  for  the  institution 
of  the  Permanent  Court  of  Inter- 
national Justice  mentioned  in 
Article  1^  of  the  Covenant  of  the 
League  of  Nations  presented  to 
the  Council  of  the  League  by  the 
Advisory  Committee  of  Jurists.^ 

Article  1 
A  Permanent  Court  of  Interna- 
tional Justice,  to  which  Parties 
shall  have  direct  access,  is  hereby 
established,  in  accordance  with 
Article  14  of  the  Covenant  of  the 
League  of  Nations.  This  Court 
shall  be  in  addition  to  the  Court  of 
Arbitration  organised  by  the  Hague 
Conventions  of  1899  and  1907,  and 
to  the  special  Tribunals  of  Arbitra- 
tion to  which  States  are  always  at 
liberty  to  submit  their  disputes  for 
settlement. 


CHAPITRE  I 

Organisation  de  la  Cour 

Article  2 
La  Cour  Permanente  de  Justice  In- 
ternationale est  un  corps  de  magis- 
trals indepcndants,  elus,  sans  egard 
a  leur  nationalite,  parmi  les  per- 
sonnes  jouissant  de  la  plus  haute 
consideration  morale,  ct  qui  reunis- 
sent   les   conditions   requises   pour 


CHAPTER  I 

Organisation  of  the  Court 

Article  2 
The  Permanent  Court  of  Inter- 
national Justice  shall  be  composed 
of  a  body  of  independent  judges, 
elccted,regardless  of  their  national- 
ity, from  amongst  persons  of  high 
moral  character,  who  possess  the 
qualifications  required,  in  their  re- 


1920 


^  League  of  Nations,  Official  Journal,  Special  Supplement  No.   2,  September, 


Official  translation.     Ibid. 


150 


I'exercice,  dans  leurs  pays  respec- 
tifs,  des  plus  haiites  fonctions  ju- 
diciaries, ou  qui  sont  des  juriscon- 
sultes  possedant  une  competence 
notoire  en  matiere  de  droit  inter- 
national. 

Article  3 
La  Cour  se  compose  de  15  mem- 
bres:  11  juges  titulaires  et  4  juges 
suppleants.  Le  nombre  des  juges 
titulaires  et  des  juges  suppleants 
pent  etre  eventuellement  augmente 
par  I'Assemblee,  sur  la  proposition 
du  Conseil  de  la  Societe  des  Na- 
tions, a  concurrence  de  15  juges 
titulaires  et  de  6  juges  suppleants. 

Article  4 
Les  membres  de  la  Cour  sont  elus 
par  I'Assemblee  et  par  le  Conseil 
sur  une  liste  de  personnes  presen- 
tees par  les  groupes  nationaux  de 
la  Cour  d' Arbitrage,  conformement 
aux  dispositions  suivantes. 

Article  5 
Trois  mois  au  moins  avant  la 
date  de  I'election,  de  Secretaire 
General  de  la  Societe  des  Nations 
invite  par  ecrit  les  membres  de  la 
Cour  d'Arbitrage  appartenant  a  des 
Etats  mcntionncs  a  I'Annexe  au 
Facte  ou  entres  ulterieurement 
dans  la  Societe  des  Nations,  a  pro- 
ceder  par  groupes  nationaux  a  la 
presentation  de  peisonnes  en  situa- 
tion de  remplir  les  fonctions  de 
membres  de  la  Cour. 


spective  countries,  for  appointment 
to  the  highest  judicial  offices,  or  are 
jurisconsults  of  recognised  compe- 
tence in  international  law. 


Article  3 
The  Court  shall  consist  of  15 
members:  11  judges  and  4  deputy- 
judges.  The  number  of  judges  and 
deputy-judges  may  be  hereafter  in- 
creased by  the  Assembly,  upon  the 
proposal  of  the  Council  of  the 
League  of  Nations,  to  a  total  of  15 
judges  and  6  deputy-judges. 

Article  4 
The  members  of  the  Court  shall 
be  elected  by  the  Assembly  and  the 
Council  from  a  list  of  persons 
nominated  by  the  national  groups 
in  the  Court  of  Arbitration,  in  ac- 
cordance with  the  following  provi- 
sions. 

Article  5 
At  least  three  months  before  the 
date  of  the  election,  the  Secretary- 
General  of  the  League  of  Nations 
shall  address  a  written  request  to 
the  members  of  the  Court  of  Arbi- 
tration, belonging  to  the  States 
mentioned  in  the  Annex  to  the 
Covenant  or  to  the  States  which 
shall  have  joined  the  League  sub- 
sequently, inviting  them  to  under- 
take, by  national  groups,  the  nomi- 
nation of  persons  in  a  position  to 
accept  the  duties  of  a  member  of 
the  Court. 


151 


Chaque  groupe  nc  pout  en  aucun  No  group  may  nominate  more 
cas  presenter  plus  de  deux  person-  than  two  persons;  the  nominees 
nes,  sans  distinction  de  nationalite.     may  be  of  any  nationality. 


Article  6 
Avant  de  proccdcr  a  cette  desig- 
nation il  est  rccommande  a  chaque 
groupe  national  de  consulter  la  plus 
Haute  Cour  de  Justice,  les  Facultes 
et  Ecoles  de  Droit,  les  Academies 
nationales  et  les  sections  nationales 
d'Academies  Internationales,  vou- 
ees  a  I'etude  du  droit. 

Article  7 

Le  Secretaire  General  de  la  So- 
ciete  des  Nations  dresse,  par  ordre 
alphabetique,  une  liste  de  toutes 
les  personnes  ainsi  designees: 
seules  ces  personnes  sont  eligibles, 
sauf  le  cas  prevu  a  I'article  12 
paragraphe  2. 

Le  Secretaire  General  communi- 
que cette  liste  a  I'Assemblee  et  au 
Conseil. 

Article  8 
L'Assemblee  et  le  Conseil  pro- 
cedent,  indcpendamment  I'une  de 
I'autre,  a  I'election,  d'abord  des 
juges  titulaires,  ensuite  des  juges 
suppleants. 

Article  9 
Dans  toute  election,  les  electeurs 
veillent  a  ce  que  les  personnes  ap- 
pelees  a  faire  partie  de  la  Cour, 
non  seulcment  reunissent  indivi- 
duellcment  les  conditions  requises, 
mais  assurent  dans  I'cnsemble  la 
representation  des  grandes  formes 


Article  6 

Before  making  these  nomina- 
tions, each  national  group  is  here- 
by recommended  to  consult  its 
Highest  Court  of  Justice,  its  Legal 
Faculties  and  Schools  of  Law,  and 
its  National  Academies  and  na- 
tional sections  of  International 
Academies  devoted  to  the  study  of 
Law. 

Article  7 

The  Secretary's-General  of  the 
League  of  Nations  shall  prepare  a 
list  in  alphabetical  order,  of  all 
the  persons  thus  nominated.  Tliese 
persons  only  shall  be  eligible  for 
appointment,  except  as  provided  in 
Article  12  paragraph  2. 

The  Secretary-General  shall  sub- 
mit this  list  to  the  Assembly  and  to 
the  Council. 

Article  8 
The   Assembly  and  the  Council 
shall  proceed  to  elect  by  indepen- 
dent votings  first  tlie  judges  and 
then  the  deputy-judges. 

Article  9 
At  every  election,  the  electors 
shall  bear  in  mind  that  not  only 
should  all  the  persons  appointed  as 
members  of  the  Court  possess  the 
qualifications  required,  but  the 
whole  body  also  should  represent 
the  main  forms  of  civilisation  and 


152 


de   civilisation   et   des   principaux 
systenies  juridiques  dii  monde. 

Article  10 
Sont  elus  ceux  qui  ont  reuni  la 
majorite    absolue    des    voix    dans 
I'Assemblee  et  dans  le  Conseil. 


Au  cas  ou  le  double  scrutin  de 
I'Assemblee  et  du  Conseil  se  por- 
terait  sur  plus  d'un  membre  de  la 
meme  nationalite,  le  plus  age  est 
seul  elu. 

Article  11 
Si  apres  la  premiere  seance 
d'election  il  reste  encore  des  sieges 
a  pourvoir,  il  est  procede  de  la 
meme  maniere  a  uiie  seconde,  puis 
a  une  troisieme. 

Article  12 

Si  apres  la  troisieme  seance 
d'election  il  reste  encore  des  sieges 
a  pourvoir,  il  pent  etre  a  tout  mo- 
ment forme  sur  la  seule  demande, 
soit  de  I'Assemblee,  soil  du  Conseil, 
une  Commission  mediatrice  de  six 
membres,  nommcs  trois  par  I'As- 
semblee, trois  par  le  Conseil,  en 
vue  de  choisir  pour  chaque  siege 
non  pourvu  un  nom  a  presenter  a 
I'adoption  separee  de  I'Assemblee 
et  du  Conseil. 

Peuvent  etre  portees  sur  cettc 
liste,  a  I'unanimite  toutes  person- 
nes  satisfaisant  aux  conditions  re- 
quiscs,  alors  meme  qu'elles  n'au- 
raient  pas  figure  sur  la  liste  de  pre- 
sentation de  la   Cour  d' Arbitrage. 


the  principal  legal  systems  of  the 
world. 

Article  10 

Those  candidates  who  obtain  an 
absolute  majority  of  votes  in  the 
Assembly  and  the  Council  shall  be 
considered  as  elected. 

In  the  event  of  more  than  one 
candidate  of  the  same  nationality 
being  elected  by  the  votes  of  both 
the  Assembly  and  the  Council,  the 
eldest  of  these  only  shall  be  con- 
sidered as  elected. 

Article  11 
If,  after  the  first  sitting  held  for 
the  purpose  of  the  election,  one  or 
more  seats  remain  to  be  filled,  a 
second  and,  if  necessary,  a  third 
sitting  shall  take  place. 

Article  12 

If  after  the  third  sitting  one  or 
more  seats  still  remain  unfilled,  a 
joint  Conference  consisting  of  six 
members,  three  appointed  by  the 
Assembly  and  three  by  the  Council, 
may  be  formed,  at  any  time,  at  the 
request  of  either  the  Assembly  or 
the  Council,  for  the  purpose  of 
choosing  one  name  for  each  seat 
still  vacant,  to  submit  to  the  As- 
sembly and  the  Council  for  their 
respective  acceptance. 

If  the  Committee  is  unanimously 
agreed  upon  any  person  who  ful- 
fils the  required  conditions  he  may 
be  included  in  its  list,  even  though 
he  was  not  included  in  the  list  of 
nominations  made  by  the  Court  of 
Arbitration. 


153 


Si  par  le  moyen  de  la  Commission 
media  trice  Telection  ii'a  pu  etre 
faite,  les  membrcs  de  la  Cour  deja 
noinmes  pourvoient  dans  un  delai 
a  fixer  par  le  Conseil  aux  sieges 
vacants,  en  choisissant  parmi  les 
personnes  qui  ont  eu  des  voix,  soil 
a  I'Assemblee  soit  au  Conseil. 


Si  parmi  les  juges  il  y  a  partage 
egal  des  voix,  la  voix  du  juge  le 
plus  age  I'emporte. 

Article  13 

Les  membres  de  la  Cour  sont 
elus  pour  neuf  ans. 

lis  sont  reeligibles. 

lis  restent  en  fonction  jusqu'a 
leur  remplacement.  Apres  ce  rem- 
placement,  ils  continuent  de  con- 
naitre  des  affaires  dont  ils  sont  deja 
saisis. 

Article  14 
II  est  pourvu  aux  sieges  devenus 
vacants  selon  la  methode  suivie 
pour  la  premiere  election.  Le 
membre  de  la  Cour  elu  en  rem- 
placement d'un  membre  dont  le 
mandat  n'cst  pas  expire  acheve  le 
terme  du  mandat  de  son  predeces- 
seur. 


Article  15 
Les  juges  suppleants  sont  appeles 
dans  I'ordre  du  tableau. 

Le  tableau  est  dresse  par  la  Cour, 
en   tenant   compte    d'abord   de   la 


U  the  Joint  Conference  is  not 
successful  in  procuring  an  election, 
those  members  of  the  Court  who 
have  already  been  appointed  shall, 
within  a  time  limit  to  be  arranged 
by  the  Council,  proceed  to  fill  the 
vacant  seats  by  selection  from 
amongst  those  candidates  who  have 
obtained  votes  either  in  the  Assem- 
bly or  in  the  Council. 

In  the  event  of  an  equality  of 
votes  amongst  the  judges,  the  eldest 
judge  shall  have  a  casting  vote. 

Article  13 

The  members  of  the  Court  shall 
be  elected  for  nine  years. 

They  may  be  re-elected. 

They  shall  continue  to  discharge 
their  duties  until  their  places  have 
been  filled.  Though  replaced,  they 
shall  complete  any  cases  which 
they  may  have  begun. 

Article  14 
Vacancies  which  maj'  occur  shall 
be  filled  by  the  same  method  as 
that  laid  down  for  the  first  elec- 
tion. A  member  of  the  Court  elec- 
ted to  replace  a  member,  the  period 
of  whose  appointment  has  not  ex- 
pired, will  hold  the  appointment 
for  the  remainder  of  his  predeces- 
sor's term. 

Article  15 

Deputy-judges  shall  be  called 
upon  to  sit  in  the  order  laid  down 
in  a  list. 

This  list  shall  be  prepared  by  the 
Court,   having  regard  first  to   the 


154 


priorite    d'election    et    ensiiite    de     order  in  time  of  each  election  and 
I'anciennete  d'age.  secondly  to  age. 


Article  16 
L'exercice  de  toute  fonction  qui 
releve  de  la  direction  politique, 
soil  nationale,  soil  Internationale, 
des  Etats,  est  incompatible  avec  la 
qualite  de  membre  de  la  Cour. 


En  cas  de  doute,  la  Cour  decide. 

Article  17 

Les  membres  de  la  Cour  ne  peu- 
vent  exercer  les  fonctions  d'agent, 
de  conseil  ou  d'avocat  dans  aucune 
affaire  d'ordre  international. 

lis  ne  peuvent  participer  au 
reglement  d'aucune  affaire  dans 
laquelle  ils  sont  anterieurement 
intervenus  comme  agents,  conseils 
ou  avocats  de  I'une  des  parties, 
membres  d'un  tribunal  national  ou 
international,  d'une  commission 
d'enquete,  ou  a  tout  autre  litre. 

En  cas  de  doute  la  Cour  decide. 

Article  18 

Les  membres  de  la  Cour  ne  peu- 
vent etre  releves  de  leurs  fonctions 
que  si,  au  jugement  unanime  des 
autres  membres,  ils  ont  cesse  de 
repondre  aux  conditions  requises. 

Le  Secretaire  General  de  la  So- 
cicte  des  Nations  en  est  ofTicielle- 
mcnt  informe. 

Cette  communication  emporte 
vacance  de  siege 


Article  16 

The  exercise  of  any  function 
which  belongs  to  the  political  di- 
rection, national  or  international, 
of  States,  by  the  Members  of  the 
Court  during  their  terms  of  office 
is  declared  incompatible  with  their 
judicial  duties. 

Any  doubt  upon  this  point  is  set- 
tled by  the  decision  of  the  Court. 

Article  17 
No  member  of  the  Court  can  act 
as  agent,  counsel  or  advocate  in  any 
case  of  an  international  nature. 

No  member  may  participate  in 
the  decision  of  any  case  in  which 
he  has  previously  taken  an  active 
part,  as  agent,  counsel,  or  advocate 
for  one  of  the  contesting  parties,  or 
as  a  member  of  a  national  or  inter- 
national Court,  or  of  a  Commission 
of  Inquiry,  or  in  any  other  capacity. 

Any  doubt  upon  this  point  is  set- 
tled by  the  decision  of  the  Court. 

Article  18 

A  member  of  the  Court  cannot 
be  dismissed  unless,  in  the  unani- 
mous opinion  of  the  other  Mem- 
bers, he  has  ceased  to  fulfil  the  re- 
quired conditions. 

When  this  happens  a  formal  no- 
tification shall  be  given  to  the  Sec- 
retary-General. 

This  notification  makes  the  place 
vacant. 


155 


Article  19 
En  dehors  de  leur  propre  pays, 
les  mcnibrcs  de  la  Cour  jouissent 
des  memos  privileges  et  immunites 
que  les  agents  diplomatiques. 

Article  20 
Tout  membre  de  la  Cour  doit, 
avant  d'entrer  en  fonction,  en  se- 
ance publique  prendre  engagement 
solennel  d'exercer  ses  attributions 
en  pleine  impartialite  et  en  toute 
conscience. 

Article  21 

La  Cour  elit,  pour  trois  axis,  son 
Piesident  et  son  Vice-President;  ils 
sont  reeligibles. 

Elle  nomme  son  Greffier. 

La  fonction  de  GrefTier  de  la 
Cour  n'est  pas  incompatible  avec 
celle  de  Secretaire  General  de  la 
Cour  Permanente  d'Arbitrage. 

Article  22 

Le  siege  de  la  Cour  est  fixe  a  la 
Haye. 

Le  President  et  le  GrefTier  resi- 
dent au  siege  de  la  Cour. 

Article  23 

La  Cour  tient  une  session  chaque 
annee. 

Sauf  disposition  contraire  du 
reglement  d'ordre  de  la  Cour,  cette 
session  commence  le  15  juin,  et 
continue  tant  que  le  role  n'est  pas 
epuise. 

Le  President  convoque   la   Cour 


Article  19 
The  members  of  the  Court,  when 
outside  their  own  country,  shall  en- 
joy the  privileges  and  immunities 
of  diplomatic  representatives. 

Article  20 
Every  member  of  the  Court  shall, 
before  taking  up  his  duties,  make 
a  solemn  declaration  in  open  Court 
that  he  will  exercise  his  powers  im- 
partially and  conscientiously. 

Article  21 

The  Court  shall  elect  its  Presi- 
dent and  Vice-President  for  three 
years:  they  may  be  re-elected. 

It  shall  appoint  its  Registrar. 

The  duties  of  Registrar  of  the 
Court  shall  not  be  considered  in- 
compatible with  those  of  Secretary- 
General  of  the  Permanent  Court  of 
Arbitration. 

Article  22 

The  seat  of  the  Court  shall  be 
established  at  The  Hague. 

The  President  and  Registrar  shall 
reside  at  the  seat  of  the  Court. 

Article  23 

A  session  shall  be  held  every 
year. 

Unless  otherwise  provided  by 
rules  of  Court,  this  session  shall  be- 
gin on  the  15th  June,  and  shall  con- 
tinue for  so  long  as  may  be  neces- 
sary to  complete  the  cases  on  the 
list. 

The  President  mav  summon  an 


156 


en    session    extraordinaire    quand 
les  circonstances  I'exigent. 

Article  24 

Si,  pour  line  raison  speciale,  I'un 
des  membres  de  la  Cour  estime  ne 
pouvoir  participer  au  jiigement 
d'une  affaire  determinee,  il  en  fait 
part  au  President. 

Si  le  President  estime  qu'un  des 
membres  de  la  Cour  ne  peut  sieger, 
pour  une  raison  speciale,  dans  une 
affaire  determinee,  il  en  avertit  le 
membre  interesse. 

Si  I'un  et  I'autre  ne  sont  pas  d'ac- 
cord  dans  chacun  de  ces  cas  sur 
I'attitude  a  prendre,  la  Cour  de- 
cide. 


Article  25 

Sauf  exception  expressement 
prevue,  la  Cour  exerce  ses  attribu- 
tions en  seance  pleniere. 

Si  la  presence  de  11  juges  titu- 
laires  n'est  pas  assuree  ce  nombre 
est  parfait  par  I'entree  en  fonction 
des  juges  suppleants. 

Toutefois,  si  11  juges  ne  sont  pas 
disponibles,  le  quorum  de  9  est 
sufiisant  pour  constituer  la  Cour. 

Article  26 
En  vue  de  la  prompte  expedition 
des  affaires,  la  Cour  compose  an- 
nuellemcnt  une  chambre  de  trois 
juges,  appelee  a  statuer  en  proce- 
dure sommaire,  lorsque  les  parties 
le  demandent. 


extraordinary  meeting  of  the  Court 
whenever  necessary. 

Article  24 

If,  for  some  special  reason,  a 
member  of  the  Court  considers  that 
he  cannot  take  part  in  the  decision 
of  a  particular  case,  he  shall  so  in- 
form the  President. 

If,  for  some  special  reason,  the 
President  considers  that  one  of  the 
members  of  the  Court  should  not  sit 
on  a  particular  case,  he  shall  give 
notice  to  the  member  concerned. 

In  the  event  of  the  President  and 
the  member  not  agreeing  as  to  the 
course  to  be  adopted  in  any  such 
case,  the  matter  shall  be  settled  by 
the  decision  of  the  Court. 

Article  25 

The  full  Court  shall  sit  except 
when  it  is  expressly  provided  other- 
wise. 

If  11  judges  cannot  be  present, 
deputy-judges  shall  be  called  upon 
to  sit  in  order  to  make  up  this 
number. 

If,  however,  11  judges  are  not 
available,  a  quorum  of  9  judges 
shall  suffice  to  constitute  the  Court. 

Article  26 
With  a  view  to  the  speedy  des- 
patch of  business  the  Court  shall 
form,  annually,  a  chamber  com- 
posed of  three  judges  who,  at  the 
request  of  the  contesting  parties, 
may  hear  and  determine  cases  by 
summary  procedure. 


157 


Article  27 
La  Cour  determine  par  un  regle- 
ment  d'ordre  le  mode  suivant 
lequel  elle  exerce  ses  attributions. 
Elle  regie  specialement  la  proce- 
dure sommaire. 

Article  28 

Les  juges  de  la  nationalite  de 
chacunc  des  parties  en  cause  con- 
servent  le  droit  de  sieger  dans  I'af- 
faire  dont  la  Cour  est  saisie. 

Si  ia  Cour  compte  sur  le  siege  un 
juge  de  la  nationalite  d'une  seule 
des  parties,  I'autre  partie  pent  de- 
signer pour  sieger  un  juge  sup- 
pleant  s'il  s'en  trouve  un  de  sa  na- 
tionalite. S'il  n'en  existe  pas,  elle 
pent  choisir  un  juge,  pris  de  pre- 
ference parmi  les  personnes  qui 
ont  ete  I'objet  d'une  presentation 
de  la  part  des  groupes  nationaux 
de  la  Cour  d' Arbitrage. 

Si  la  Cour  ne  compte  sur  le  siege 
aucun  juge  de  la  nationalite  des 
parties,  chacune  de  ces  parties  pent 
proceder  a  la  designation  ou  au 
choix  d'un  juge  de  la  meme  ma- 
niere  qu'au  paragraphe  precedent. 

Lorsque  plusieurs  parties  font 
cause  commune,  elles  ne  comptent 
pour  Tapplication  des  dispositions 
qui  precedent  que  pour  unc  seule. 

Les  juges  designes  ou  choisis 
comme  il  est  dit  aux  §§  2  et  3  du 
present  article,  doivent  satisfaire 
aux  prescriptions  des  articles  2,  16, 
17,  20,  24  du  present  Acte.  lis  sta- 
tuent  sur  un  pied  d'egalite  avec 
leurs  collogues. 


Article  27 
The  Court  shall  frame  rules  for 
regulating  its  procedure.     In  par- 
ticular, it  shall  lay  down  rules  for 
summary  procedure. 

Article  28 

Judges  of  the  nationality  of  each 
contesting  party  shall  retain  their 
right  to  sit  in  the  case  before  the 
Court. 

If  the  Court  includes  upon  the 
Bench  a  judge  of  the  nationality  of 
one  of  the  parties  only,  the  other 
party  may  select  from  among  the 
deputy-judges  a  judge  of  its 
nationality,  if  there  be  one.  If 
there  should  not  be  one,  the  party 
may  choose  a  judge,  preferably 
from  among  those  persons  who 
have  been  nominated  as  candidates 
by  a  national  group  of  the  Court 
of  Arbitration. 

If  the  Court  includes  upon  the 
Bench  no  judge  of  the  nationality 
of  the  contesting  parties,  each  of 
these  may  proceed  to  select  or 
choose  a  judge  as  provided  in  the 
preceding  paragraph. 

Should  there  be  several  parties 
in  the  same  interest,  they  shall,  for 
the  purpose  of  the  preceding  pro- 
visions, be  reckoned  as  one  party 
only. 

Judges  selected  or  chosen  as  laid 
down  in  para'graphs  2  and  3  of  this 
article  shall  fulfil  the  conditions  re- 
quired by  Articles  2,  16,  17,  20,  24 
of  this  Statute.  They  shall  take 
part  in  the  decision  on  an  equal 
footing  with  their  colleagues. 


158 


Article  29 

Les  juges  titulaires  recoivent 
un  traitenient  annuel  a  fixer  par 
I'Assemblee  de  la  Societe  des  Na- 
tions sur  la  proposition  du  Con- 
seil.  Ce  traitnient  ne  pent  etre  di- 
niinue  pendant  la  duree  des  fonc- 
tions  du  juge. 

Le  President  regoit  une  indeni- 
nite  speciale  deterniinee  de  la 
meme  maniere  pour  la  duree  de 
ses  fonctions. 

Les  juges  suppleants  resolvent 
dans  I'exercice  de  leurs  fonctions 
une  indeninite  a  fixer  de  la  nieme 
maniere. 

Les  juges  titulaires  et  suppleants 
qui  ne  resident  pas  au  siege  de  la 
Cour  regoivent  le  reniboursenient 
des  frais  de  voyages  necessites  par 
racconiplissenient  de  leurs  fonc- 
tions. 

Les  indeninites  dues  aux  juges 
designes  ou  choisis  ronforniement 
a  I'article  28  sont  reglees  de  la 
meme  maniere. 

Le  traitment  du  Greffier  est  fixe 
par  le  Conseil  sur  la  proposition 
de  la  Cour. 

Un  reglement  speciale  determine 
les  pensions  auxquelles  ont  droit 
les  juges  ct  le  Greffier. 

Article  30 
Les  frais  de  la   Cour  sont  sup- 
portes  par  la  Societe  des  Nations 
de  la  maniere  que  I'Assemblee  de- 
cide sur  la  proposition  du  Conseil. 


Article  29 

The  judges  shall  receive  an  an- 
nual salary  to  he  determined  by  the 
Assembly  of  the  League  of  Nations 
upon  the  proposal  of  the  Council. 
This  salary  must  not  be  decreased 
during  the  period  of  a  judge's  ap- 
pointment. 

The  President  shall  receive  a  spe- 
cial grant  for  his  period  of  office,  to 
be  fixed  in  the  saine  way. 

Deputy-judges  shall  receive  a 
grant,  for  the  actual  performance 
of  their  duties,  to  be  fixed  in  the 
same  way. 

Travelling  expenses  incurred  in 
the  performance  of  their  duties 
shall  be  refunded  to  judges  and 
deputy-judges  who  do  not  reside  at 
the  seat  of  the  Court. 

Grants  due  to  judges  selected  or 
chosen  as  provided  in  Article  28 
shall  be  determined  in  the  same 
way. 

The  salary  of  the  Registrar  shall 
be  decided  by  the  Council  upon  the 
proposal  of  the  Court. 

A  special  regulation  shall  pro- 
vide for  the  pensions  to  which  the 
judges  and  Registrar  shall  be  enti- 
tled. 

Article  30 
The  expenses  of  the  Court  shall 
be  borne  by  the  League  of  Nations, 
in  such  a  manner  as  shall  be  de- 
cided by  the  Assembly  upon  the 
proposal  of  the  Council. 


159 


CHAPITRE  II 

Competence  de  la  Coiir 

Article  31 
La  Coiir  connait  dcs  litiges  entre 
Etats. 

Article  32 

La   Coiir   est  oiiverte   aux  Etats 

nientionnes  a  I'Annexe  au  Facte  et 

a   ccux  qui  seront  ulterieurement 

entres  dans  la  Societe  des  Nations. 

Elle  est  accessible  aux  autres 
Etats. 

Les  conditions  auxquelles  elle 
est  ouvertc  ou  accessible  aux  Etats 
qui  ne  sont  pas  Membres  de  la  So- 
ciete des  Nations,  sont  reglees  par 
le  Conseil,  en  tenant  conipte  de 
I'articlc  17  du  Facte. 

Article  33 
Lorsqu'un  differend  surgit  entre 
Etats,  qu'il  n'a  pu  etre  regie  par  la 
voie  diplomatique  et  que  Ton  n'est 
pas  convenu  de  choisir  une  autre 
juridiction,  la  partie  qui  se  pre- 
tend lesee  peut  en  saisir  la  Cour. 
La  Cour,  aprcs  avoir  decide  s'il  est 
satisfait  aux  prescriptions  prcce- 
dentcs,  statue  sous  les  conditions 
et  limitations  determinces  par 
I'article  suivant. 


CHAPTER  II 

Competence  of  the  Court 

Article  31 
The  Court  shall  have  jurisdiction 
to    hear   and   determine   suits   be- 
tween States. 

Article  32 

The  Court  shall  be  open  of  right 
to  the  States  mentioned  in  the  An- 
nex to  the  Covenant,  and  to  such 
others  as  shall  subsequently  enter 
the  League  of  Nations. 

Other  States  ma^'  have  access  to 
it. 

The  conditions  under  which  the 
Court  shall  be  open  of  right  or 
accessible  to  States  which  are  not 
Members  of  the  League  of  Nations 
shall  be  determined  by  the  Council, 
in  accordance  with  Article  17  of  the 
Covenant. 

Article  33 
When  a  dispute  has  arisen  be- 
tween  States,  and  it  has  been  found 
impossible  to  settle  it  by  diplomatic 
means,  and  no  agreement  has  been 
made  to  choose  another  jurisdic- 
tion, the  party  complaining  may 
bring  the  case  before  the  Court. 
The  Court  shall,  first  of  all,  decide 
whether  the  preceding  conditions 
have  been  complied  with;  if  so,  it 
shall  hear  and  determine  the  dis- 
pute according  to  the  terms  and 
within  the  limits  of  the  next  Ar- 
ticle. 


160 


Article  34 
Entre  Etats  Membres  de  la  So- 
ciete  des  Nations  la  Cour  statue 
sans  convention  speciale  sur  les 
differends  d'ordre  juridique,  qui 
ont  pour  objet : 


a)  L'interpretation  d'un  traite; 

b)  Tout  point  de  droit  interna- 

tional; 

c)  La  realite  de  tout  fait,  qui,  s'il 

etait  etabli,  constituerait  la 
violation  d'un  engagement 
international; 

d)  La  nature  ou  I'etendue  de  la 

reparation  due  pour  la  rup- 
ture d'un  engagement  inter- 
national; 
e)~  L'interpretation     d'une     sen- 
tence rendue  par  la  Cour. 

La  Cour  connait  egalement  de 
tous  differends,  de  quelque  nature 
qu'ils  soient,  qui  lui  sont  soumis 
par  la  convention  soil  generate,  soit 
speciale,  des  parties. 

En  cas  de  contestation  sur  le 
point  de  savoir  si  un  differend 
rentre  dans  les  categories  ci-dessus 
visees,  la  Cour  decide. 


Article   35 
Dans   les   limites   de   sa   compe- 
tence, telle  qu'elle  est  determinee 
par  I'article  34,  la  Cour  applique 
en  ordre  successif : 

I'*)  Les  conventions  intcrnatio- 
nales  soit  generates,  soit 
specialcs,  etablissant  des 
regies  expressement  rccon- 
nues  par  les  Etats  en  litige. 


Article  34 
Between  States  which  are  Mem- 
bers of  the  League  of  Nations,  the 
Court  shall  have  jurisdiction  (and 
this  without  any  special  convention 
giving  it  jurisdiction)  to  hear  and 
determine  cases  of  a  legal  nature, 
concerning : 

(a)  The     interpretation     of     a 

treaty; 

(b)  Any    question     of    interna- 

tional law; 

(c)  The    existence    of    any   fact 

which,  if  established,  would 
constitute  a  breach  of  an  in- 
ternational obligation; 

(d)  The  nature  or  extent  of  rep- 

aration to  be  made  for  the 
breach  of  an  international 
obligation; 

(e)  The  interpretation  of  a  sen- 

tence passed  by  tlie  Court. 

The  Court  shall  also  take  cogni- 
sance of  all  disputes  of  any  kind 
which  may  be  submitted  to  it  by  a 
general  or  particular  convention 
between  the  parties. 

In  the  event  of  a  dispute  as  to 
whether  a  certain  case  comes  with- 
in any  of  the  categories  above  men- 
tioned, the  matter  shall  be  settled 
by  the  decision  of  the  Court. 

Article  35 
The  Court  shall,  within  the  limits 
of  its  jurisdiction  as  defined  in  Ar- 
ticle 34,  apply  in  the  order  follow- 
ing: 

(1)  International  conventions, 
whether  general  or  particu- 
lar, establishing  rules  ex- 
pressly recognized  by  the 
contesting  States; 


161 


2°)  La  coutume  internationale, 
attestation  d'unc  pratique 
coniniune  acceptee  coinme 
loi; 

3°)  Les  principes  gencraux  de 
droit  reconnus  par  les  na- 
tions civilsees; 

4°)  Les  decisions  judiciaires  et 
la  doctrine  des  publicistes 
les  plus  qualifies  des  difi'e- 
rentes  nations  comme  moy- 
ens  auxiliaires  de  determi- 
nation des  regies  de  droit. 

Article  36 
La  Cour  donne  son  avis  sur  tout 
point  ou  tout  difierend  d'ordre  in- 
ternational qui  lui  est  soumis  par 
le  Conseil  ou  par  I'Assemblee. 

Lorsque  la  Cour  donne  son  avis 
sur  un  point  d'ordre  international 
independamment  de  tout  differend 
actuellement  ne  elle  constitue  une 
Commission  speciale  de  3  a  5  mem- 
bres. 

Lorsqu'elle  donne  son  avis  sur 
une  question  qui  fait  I'objet  d'un 
differend  actuellement  ne  elle  sta- 
tue dans  les  memes  conditions  que 
s'il  s'agissait  d'un  litige  porte  de- 
vant  elle. 


(2)  International  custom,  as  evi- 
dence of  a  general  practice, 
which  is  accepted  as  law; 

(3)  The  general  principles  of  law 
recognized  by  civilized  na- 
tions; 

(4)  Judicial  decisions  and  the 
teachings  of  the  most  highly 
qualified  publicists  of  the 
various  nations,  as  subsid- 
iary means'  for  the  deter- 
mination of  rules  of  law. 

Article  36 

The  Court  shall  give  an  advisory 
opinion  upon  any  question  or  dis- 
pute of  an  international  nature  re- 
ferred to  it  by  the  Council  or  As- 
sembly. 

When  the  Court  shall  give  an 
opinion  on  a  question  of  an  inter- 
national nature  which  does  not  re- 
fer to  any  dispute  that  may  have 
arisen,  it  shall  appoint  a  special 
Commission  of  from  three  to  five 
members. 

When  it  shall  give  an  opinion 
upon  a  question  which  forms  the 
subject  of  an  existing  dispute,  it 
shall  do  so  under  the  same  condi- 
tions as  if  the  case  had  been  actu- 
ally submitted  to  it  for  decision. 


CHAPITRE  III 

Procedure 

Article  37 
La  langue  de  la  Cour  est  le  fran- 


gais. 


La  Cour  pent,  a  la  demande  des 
parties,    autoriser    I'emploi    d'une 


CHAPTER  111 
Procedure 

Article  37 

The  official  language  of  the  Court 
shall  be  French. 

The  Court  may,  at  the  request  of 
the    contesting    parties,    authorise 


162 


autre  langue  devant  elle. 

Article  38 
La   Coiir  est  saisie  par  une  re- 
quete  adressee  au  Greffe. 


La  requete  indique  I'objet  dii 
differend  et  designe  les  parties  en 
cause. 

Le  Greffe  fait  immediatement 
notification  de  la  requete  aux  in- 
teresses. 

II  en  inf  orme  egalement  les  Mem- 
bres  de  la  Societe  des  Nations  par 
I'entremise  du  Secretaire  General. 

Article   39 

Dans  le  cas  ou  la  cause  du  dif- 
ferend consiste  en  un  acte  eflfectue 
ou  sur  le  point  de  I'etre;  la  Cour  a 
le  pouvoir  d'indiquer,  si  elle  es- 
timc  que  les  circonstances  I'exi- 
gent,  quelles  mesures  conservatoi- 
res du  droit  de  chacun  doivent  etre 
prises  a  litre  provisoire. 

En  attendant  I'arret  definitif 
I'indication  de  ces  mesures  est  im- 
mediatement transmis  aux  parties 
et  au  Conseil. 

Article  40 

Les  parties  sont  representees  par 
des  agents. 

Elles  peuvent  se  faire  assister 
devant  la  Cour  par  des  conseils  ou 
des  avocats. 

Article  41 
La    procedure    a    deux    phases: 
I'une  ecrile,  Tautre  orale. 


another  language  to  be  used  before 
it. 

Article  38 

A  State  desiring  to  have  recourse 
to  the  Court  shall  lodge  a  written 
application  addressed  to  the  Regis- 
trar. 

The  application  shall  indicate 
the  subject  of  the  dispute,  and 
name  the  contesting  parties. 

The  Registrar  shall  forthwith 
communicate  the  application  to  all 
concerned. 

He  shall  also  notify  the  Members 
of  the  League  of  Nations  through 
the  Secretary-General. 

Article  39 

If  the  dispute  arises  out  of  an  act 
which  has  already  taken  place  or 
which  is  imminent,  the  Court  shall 
have  the  power  to  suggest,  if  it  con- 
siders that  circumstances  so  re- 
quire, the  provisional  measures 
that  should  be  taken  to  preserve 
the  respective  rights  of  either  party. 

Pending  the  final  decision,  notice 
of  the  measures  suggested  shall 
forthwith  be  given  to  the  parties 
and  the  Council. 

Article  40 

The  parties  shall  be  represented 
by  agents. 

They  may  have  Counsel  or  Ad- 
vocates to  plead  before  the  Court. 

Article  41 
The   procedure   shall   consist   of 
two  parts:  written  and  oral. 


163 


Article  42 

La  procedure  ecrite  comprend  la 
communication  a  juge  et  a  partie 
des  memoires,  des  contrememoires, 
et,  eventuellement,  des  repliques, 
ainsi  que  de  toute  piece  et  docu- 
ment a  I'appui. 

La  communication  se  fait  par 
I'entremise  du  Greffe  dans  I'ordre 
et  les  delais  determines  par  la 
Cour, 

Toute  piece  produite  par  I'une 
des  parties  doit  etre  communiquee 
a  I'autre  en  copie  certifiee  con- 
forme. 

Article  43 

La  procedure  orale  consiste  dans 
I'audition  par  la  Cour  des  temoins, 
experts,  agents,  conseils  et  avocats. 

Pour  toute  notification  a  faire  a 
d'autres  personnes  que  les  agents, 
conseils  et  avocats,  la  Cour  s'ad- 
resse  directement  au  Gouverne- 
ment  de  I'Etat  sur  le  territoire  du- 
quel  la  notification  doit  produire 
effet. 

II  en  est  de  meme  s'il  s'agit  de 
faire  proceder  sur  place  a  I'estab- 
lissement  de  tons  moyens  de 
preuve. 

Article  44 
Les  debats  sont  diriges  par  le 
President  et  a  defaut  de  celui-ci  par 
le  Vice-President;  en  cas  d'em- 
pechemcnt,  par  le  plus  ancien  des 
juges  presents. 


Article  42 

The  written  proceedings  shall 
consist  of  the  communication  to  the 
judges  and  to  the  parties  of  state- 
ments of  cases,  counter-cases  and, 
if  necessary,  replies;  also  all  papers 
and  documents  in  support. 

These  communications  shall  be 
made  through  the  Registrar,  in  the 
order  and  within  the  time  fixed  by 
the  Court. 

A  certified  copy  of  every  docu- 
ment produced  by  one  party  shall 
be  communicated  to  the  other 
party. 

Article  43 

The  oral  proceedings  shall  con- 
sist of  the  hearing  by  the  Court  of 
witnesses,  experts,  agents,  counsel 
and  advocates. 

For  the  service  of  all  notices 
upon  persons  other  than  the  agents, 
counsel  and  advocates,  the  Court 
shall  apply  direct  to  the  Govern- 
ment of  the  State  upon  whose  ter- 
ritory the  notice  has  to  be  served. 

The  same  provision  shall  apply 
whenever  steps  are  to  be  taken  to 
procure  evidence  on  the  spot. 

Article  44 
The  proceedings  shall  be  under 
the  direction  of  the  President,  or 
in  his  absence,  of  the  Vice-Presi- 
dent; if  both  are  absent,  the  senior 
judge  shall  preside. 


164 


Article  45 
L'audience  est  publique,  a  inoins 
qu'il    n'en    soit    autrement    decide 
par  la  Gour  a  la  demande  motivee 
de  I'une  des  parties. 


Article  46 

II  est  tenu  de  chaque  audience  un 
proces-verbal  signe  par  le  Greffier 
et  le  President. 

Ge  proces-verbal  a  seul  caractere 
authentique. 

Article  47 
La  Gour  rend  des  ordonnances 
pour  la  direction  du  proces,  la  de- 
termination des  formes  et  delais 
dans  lesquels  chaque  partie  doit 
finalement  conclure;  elle  prend 
toutes  les  mesures  que  comporte 
I'administration  des  preuves. 

Article  48 
La  Gour  peut,  meme  avant  tout 
debat,  demander  aux  agents  de  lui 
produire  tout  document  et  de  lui 
lournir  toutes  explications.  En  cas 
de  relus,  elle  en  prend  acte. 

Article  49 
A  tout  moment,  la  Gour  peut  con- 
fier  une  enquete  ou  une  expertise  a 
toute  personne,  corps,  bureau,  com- 
mission ou  organe  dc  son  choix. 


Article  45 
The  hearing  in  Gourt  shall  be 
public,  unless  the  Gourt,  at  the 
written  request,  of  one  of  the  par- 
ties, accompanied  by  a  statement 
of  his  reasons,  shall  otherwise  de- 
cide. 

Article  46 

Minutes  shall  be  made  at  each 
hearing,  and  signed  by  the  Regis- 
trar and  the  President. 

These  minutes  shall  be  the  only 
authentic  record. 

Article  47 
The  Gourt  shall  make  orders  for 
the  conduct  of  the  case,  shall  de- 
cide the  form  and  time  in  which 
each  party  must  conclude  its  argu- 
ments, and  made  all  arrangements 
connected  with  the  taking  of  evi- 
dence. 

Article  48 
The  Gourt  may,  even  before  the 
hearing  begins,  call  upon  the  agents 
to  produce  any  document,  or  to 
supply  to  the  Gourt  any  explana- 
tions. Any  refusal  shall  be  re- 
corded. 

Article  49 
The  Gourt  may,  at  any  time,  en- 
trust any  individual,  bureau,  com- 
mission or  other  body  that  it  may 
select,  with  the  task  of  carrying  out 
an  inquiry  or  giving  an  expert 
opinion. 


165 


Article  50 
All  cours  dcs  debats,  les  jugcs 
posent  aux  temoins,  agents,  experts, 
avocats  et  conseils  toutes  questions 
qu'ils  estiment  utiles;  les  agents, 
avocats  et  conseils  ont  le  droit  de 
poser,  par  I'entremise  du  President, 
toute  question  que  la  Cour  juge 
utile. 


Article  51 
Apres  avoir  recu  les  preuves  et 
temoignages  dans  les  delais  de- 
termines par  elle,  la  Cour  pent 
ecarter  toutes  depositions  ou  docu- 
ments nouveaux  qu'une  des  parties 
voudrait  lui  presenter  sans  I'assen- 
timent  de  I'autre. 

Article  52 
Lorsqu'une  des  parties  ne  se  pre- 
sente  pas,  ou  s'abstient  de  faire 
valoir  ses  moyens,  I'autre  partie 
pent  demander  a  la  Cour  de  lui  ad- 
juger  ses  conclusions. 

La  Cour,  avant  d'y  faire  droit, 
doit  s'assurer  non  seulement  qu'elle 
a  competence  aux  termes  des  ar- 
ticles 33  et  34,  mais  que  les  con- 
clusions reposant  siir  des  preuves 
serieuses,  sont  fondces  en  fait  et  en 
droit. 

Article  53 
Quand  les  agents,  avocats  et  con- 
seils ont  fait  valoir,  sous  le  controle 
de  la  Cour,  tons  les  moyens  qu'ils 
jugcnt  utiles,  le  President  prononce 
la  cloture  des  debats. 


Article  50 
During  the  hearing  in  Court,  the 
judges  may  put  any  questions,  con- 
sidered by  them  to  be  necessary,  to 
the  witnesses,  agents,  experts,  ad- 
vocates or  counsel.  The  agents, 
advocates  and  counsel  shall  have 
the  right  to  ask,  through  the  Presi- 
dent, any  questions  that  the  Court 
considers  useful. 

Article  51 
After  the  Court  has  received  the 
proofs  and  evidence  within  the 
time  specified  for  the  purpose,  it 
may  refuse  to  accept  any  further 
oral  or  written  evidence  that  one 
party  may  desire  to  present  unless 
the  other  agrees. 

Article  52 

Whenever  one  of  the  parties  shall 
not  appear  before  the  Court,  or 
shall  fail  to  defend  his  case,  the 
other  party  may  call  upon  the 
Court  to  decide  in  favour  of  his 
claim. 

The  Court  must,  before  doing  so, 
satisfy  itself,  not  only  that  it  has 
jurisdiction  in  accordance  with 
Articles  33  and  34,  but  also  that  the 
claim  is  supported  by  substantial 
evidence  and  well  founded  in  fact 
and  law. 

Article  53 
When  the  agents,  advocates  and 
counsel,  subject  to  the  control  of 
the  Court,  have  presented  all  the 
evidence,  and  taken  all  other  steps 
that   thcv   consider   advisable,   the 


166 


La  Cour  se  retire  en  chambre  du 
conseii  pour  deliberer. 

Les  deliberations  de  la  Cour  sont 
et  restent  secretes. 

Article  54 

Les  decisions  de  la  Cour  sont 
prises  a  la  niajorite  des  juges  pre- 
sents. 

En  cas  de  partage  de  voix,  la  voix 
du  President  ou  de  celui  qui  le 
reniplace  est  preponderante. 

Article  55 
L'arret  est  motive. 

II  mentionne  les  noms  des  juges 
qui  y  out  pris  part. 

Article  56 
Si  l'arret  n'exprime  pas,  en  tout 
ou  en  partie,  I'opinion  unanime  des 
juges,  les  dissidents  ont  la  faculte 
de  demander  que  leur  opposition 
ou  leurs  reserves  soient  constatees, 
mais  sans  indication  des  motifs. 


Article  57 
L'arret  est  signe  par  le  President 
et  par  le  Greffier.     11  est  lu  en  se- 
ance publique,  les  agents  dument 
prevenus. 


President  shall  declare  the  case 
closed. 

The  Court  shall  withdraw  to  con- 
sider the  judgment. 

The  deliberations  of  the  Court 
shall  take  place  in  private  and  re- 
main secret. 

Article  54 

All  questions  shall  be  decided  by 
a  majority  of  the  judges  present  at 
the  hearing. 

In  the  event  of  an  equality  of 
votes,  the  President  or  his  deputy 
shall  have  a  casting  vote. 

Article  55 

The  judgment  shall  state  the  rea- 
sons on  which  it  is  based. 

It  shall  contain  the  names  of  the 
judges  who  have  taken  part  in  the 
decision. 

Article  56 
If  the  judgment  given  does  not 
represent,  wholly  or  in  part,  the 
unanimous  opinion  of  the  judges, 
the  dissenting  judges  shall  be  enti- 
tled to  have  the  fact  of  their  dis- 
sent or  reservations  mentioned  in 
it.  But  the  reasons  for  their  dis- 
sent or  reservations  shall  not  be 
expressed  in  the  judgment. 

Article  57 
The  judgment  shall  be  signed  by 
the  President  and  by  the  Registrar. 
It  shall  be  read  in  open  Court,  due 
notice  having  been  given  to  the 
agents. 


167 


Article  58 
L'arret  est  definitif  et  sans  re- 
cours.  En  cas  de  dispute  sur  le 
sens  et  la  portee  de  l'arret,  il  ap- 
partient  a  la  Cour  de  I'interpreter, 
a  la  demande  de  toute  partie. 

Article  59 
La  revision  de  l'arret  ne  peut  etre 
eventuellement  demandee  a  la  Cour 
qu'a  raison  de  la  decouverte  d'un 
fait  nouveau  de  nature  a  exercer 
une  influence  decisive  et  qui,  avant 
le  prononce  de  l'arret,  etait  inconnu 
de  la  Cour  et  de  la  partie  qui  de- 
mande la  revision,  sans  qu'il  y  ait, 
de  sa  part,  faute  a  I'ignorer. 

La  procedure  de  revision  s'ouvre 
par  un  arret  de  la  Cour  constatant 
expressement  I'existence  du  fait 
nouveau,  lui  reconnaissant  les 
caracteres  qui  donnent  ouverture  a 
la  revision,  et  declarant  de  ce  chef 
la  demande  recevable. 

La  Cour  peut  subordonner  I'ou- 
verture  de  la  procedure  en  revision 
a  I'execution  prealable  de  l'arret. 

Aucunc  demande  de  revision  ne 
peut  etre  formee  apres  I'expiration 
d'un  delai  de  cinq  ans. 

Article  60 
Lors(iu'un  Etat  cstime  que  dans 
un  differend  un  interet  d'ordre 
juridique  est  pour  lui  en  cause,  il 
peut  adresscr  a  la  Cour  une  re- 
qiiete,  a  fin  d'intervcntion. 


Article  58 
The  judgment  is  final  and  with- 
out appeal.  In  the  event  of  uncer- 
tainty as  to  the  meaning  or  scope 
of  the  judgment,  the  Court  shall 
construe  it  upon  the  request  of  any 
party. 

Article  59 

An  application  for  revision  of  a 
judgment  can  be  made  only  when 
it  is  based  upon  the  discovery  of 
some  new  fact,  of  such  a  nature  as 
to  be  a  decisive  factor,  which  fact 
was,  when  the  judgment  was  given, 
unknown  to  the  Court  and  also  to 
the  party  claiming  revision,  always 
provided  that  such  ignorance  was 
not  due  to  negligence. 

The  proceedings  in  revision  will 
be  opened  by  a  judgment  of  the 
Court  expressly  recording  the  ex- 
istence of  the  new  fact,  recognising 
that  it  has  such  a  character  as  to 
lay  the  case  open  to  revision,  and 
declaring  the  application  admissi- 
ble on  this  ground. 

The  Court  may  require  previous 
compliance  with  the  terms  of  the 
judgment  before  it  adinits  proceed- 
ings in  revision. 

No  application  for  revision  may 
be  made  after  the  lapse  of  five 
years  from  the  date  of  the  sentence. 

Article  60 
Should  a  State  consider  that  it 
has  an  interest  of  a  legal  nature 
which  may  be  aff'ectcd  by  the  deci- 
sion in  the  case,  it  may  submit  a 
request  to  the  Court  to  be  permitted 
to  intersene  as  a  third  party. 


168 


La  Coiir  decide. 

Article  61 
Lorsqu'il  s'agit  de  rinterpretation 
d'une  convention  a  laquelle  ont 
participe  d'autres  Etats  que  les 
parties  en  litige,  le  Grefife  avertit 
sans  delai  tous  les  signataires. 

Chacun  d'eux  a  le  droit  d'inter- 
venir  au  proces,  et  s'il  exerce  cette 
faculte,  rinterpretation  contenue 
dans  la  sentence  est  egalement 
obligatoire  a  son  egard. 

Article  62 
S'il  n'en  est  autrement  decide  par 
la  Cour,  chaque  partie  supporte  ses 
frais  de  procedure. 


It  will  be  for  the  Court  to  decide 
upon  this  request. 

Article  61 

Whenever  the  construction  of  a 
convention,  in  which  States  other 
than  those  concerned  in  the  case 
are  parties,  is  in  question,  the  Reg- 
istrar shall  notify  all  such  States 
forthwith. 

Every  State  so  notified  has  the 
right  to  intervene  in  the  proceed- 
ings; but  if  it  uses  this  right,  the 
construction  given  by  the  judgment 
will  be  as  binding  upon  it  as  upon 
the  original  parties  to  the  dispute. 

Article  62 
Unless  otherwise  decided  by  the 
Court,  each  party  shall  bear  its  own 
costs. 


Annex  B 


RESOLUTIONS  OF  THE  ADVISORY  COMMITTEE 


Premier  Voeu 

Le  Comite  Consultatif  de  Juris- 
tes,  reuni  a  la  Haye  pour  elaborer 
le  statut  d'une  Cour  Permanente 
de  Justice  Internationale; 

Convaincu  que  la  securite  des 
Etats   et   le  bien-etre   des   peuples 


First  Resolution  * 

The  Advisory  Committee  of  Ju- 
rists, assembled  at  The  Hague  to 
draft  a  plan  for  a  Permanent  Court 
of  International  Justice, 

Convinced  that  the  security  of 
States  and  the  well-being  of  peo- 


^  French  texts  taken  from  Rapport  sur  I'avant-projet  pour  I'institution  de  la 
Cour  Permanent  de  Justice  International  visee  a  I'article  14  du  Facte  de  la  Societe 
des  nations,  presente  au  Conseil  de  la  Societe  au  nom  du  Comite  Consultatif  de 
Juristes  par  Albert  de  Lapradelle  (The  Hague,  July  23,  1920),  p.  57. 

*  English  draft,  of  which  the  French  text  is  a  translation. 


169 


exigent  imperieusement  I'extension 
de  rcnipire  du  droit  et  le  develop- 
pement  des  jurisdictions  interna- 
tionales; 

Recommande : 

I.  Qu'iino  nouvelle  Conference 
des  Etats  faisant  suite  aux  deux 
premieres  Conferences  de  la  Hayc*. 
soit  reunic  dans  le  plus  bref  delai 
possible,  en  vue : 

1.  de   raflerniir   Ics    regies   exis- 

tantes  du  droit  des  gens,  spe- 
cialement  et  d'abord  dans  les 
domaines  aflfectes  par  les 
evenements  de  la  recente 
guerre; 

2.  de  formuler  et  sanctionner  les 

modifications  et  additions 
dont  la  necessite  ou  I'utilite 
s'est  revelee  a  I'occasion  de 
la  guerre  et  a  raison  des 
changements  des  conditions 
de  la  vie  Internationale  qui 
ont  suivi  ce  grand  conflit; 

3.  de    concilier   les    vues    diver- 

gentes  et  de  menager  une  en- 
tente generate  relativement 
aux  regies  qui  ont  donne  lieu 
a  controverse; 

4.  de    prendre   en   consideration 

toute  speciale  les  points  qui, 
actuellemcnt,  nc  sont  pas 
regies  d'unc  maniere  ade- 
quate et  dont  la  justice  Inter- 
nationale reclame  la  deter- 
mination precise  dans  une 
entente  commune. 

II.  Que  rinstitut  de  Droit  inter- 
national, I'American  Institute  of 
International  Law,  I'Union  juri- 
dique  internationale,  I'lntcrnation- 
al    Law    Association    et    I'lnstitut 


pies  urgently  require  the  extension 
of  the  empire  of  law  and  the  devel- 
opment of  all  international  agen- 
cies for  the  administration  of  jus- 
tice. 

Recommends : 

I.  That  a  new  conference  of  the 
nations  in  continuation  of  the  first 
two  conferences  at  The  Hague  be 
held  as  soon  as  practicable  for  the 
following  purposes : 

1.  To     restate    the     established 

rules  of  international  law,  es- 
pecially, and  in  the  first  in- 
stance, in  the  fields  affected 
by  the  events  of  the  recent 
war. 

2.  To  formulate  and  agree  upon 

the  amendments  and  addi- 
tions, if  any,  to  the  rules  of 
international  law  shown  to 
be  necessary  or  useful  by  the 
events  of  the  war  and  the 
changes  in  the  conditions  of 
international  life  and  inter- 
course which  have  followed 
the  war. 

3.  To  endeavor  to  reconcile  di- 

vergent views  and  secure 
general  agreement  upon  the 
rules  which  have  been  in  dis- 
pute heretofore. 

4.  To  consider  the  subjects  not 

now  adequately  regulated  by 
international  law,  but  as  to 
which  the  interests  of  inter- 
national justice  require  that 
rules  of  law  shall  be  de- 
clared and  accepted. 

II.  That  the  Institute  of  Interna- 
tional Law,  the  American  Institute 
of  International  Law,  the  Union 
Juridique  Internationale,  the  Inter- 
national Law  Association,  and  the 


170 


iberique  de  droit  compare,  soient 
invites  a  instituer  tel  mode  de 
travail  ou  de  collaboration  qui  leur 
paraitra  convenable  afin  de  pre- 
parer pour  la  realisation  de  cette 
oeuvre,  des  avant-projets  qui, 
d'abord  soumis  aux  divers  Gou- 
vernements,  seraient  ensuite  pre- 
sentes  a  la  conference. 

III.  Que  la  Conference  nouvelle 
prenne  le  nom  de  Conference  pour 
I'avancement  du  droit  interna- 
tional. 

IV.  Que  cette  Conference  soil 
suivie  de  Conferences  periodiques 
semblables,  assez  rapprochees  pour 
permettre  de  continuer,  en  toute 
opportunite  et  fecondite,  I'oeuvre 
entreprise,  dans  ce  qu'elle  aura 
d'inacheve. 


Iberian  Institute  of  Comparative 
Law  be  invited  to  prepare  with 
such  conference  or  collaboration 
inter  sese  as  they  may  deem  use- 
ful, projects  for  the  work  of  the 
Conference  to  be  submitted  before- 
hand to  the  several  Governments 
and  laid  before  the  Conference  for 
its  consideration  and  such  action 
as  it  may  find  suitable. 

III.  That  the  Conference  be 
named  Conference  for  the  Ad- 
vancement of  International  Law. 

IV.  That  this  Conference  be  fol- 
lowed by  further  successive  con- 
ferences at  stated  intervals  to  con- 
tinue the  work  left  unfinished. 


Deuxieme   Voeii 

Le  Comite  Consultatif  de  Juris- 
tes,  reuni  a  la  Haj'e  pour  elaborer 
le  statut  d'une  Cour  Permanente 
dc  Justice  Internationale, 

Saisi  par  son  president  d'une 
proposition  concernant,  pour  I'ave- 
nir,  retablissement  d'une  Haute 
Cour  de  Justice  Internationale, 
fornuilee  en  ces  termes: 

Article  1 
II  est  instiluc  une  Haute  Cour  de 
Justice  Internationale. 

Article  2 
Cette     Cour    se    compose     d'un 
membre  par  Etat  respectivement, 


Second  Resolution^ 

The  Advisory  Committee  of  Ju- 
rists, assembled  at  The  Hague  to 
draft  a  plan  for  a  Permanent  Court 
of  International  Justice, 

Having  considered  a  proposition 
laid  before  it  by  its  president  for 
the  establishment  in  the  future  of 
a  High  Court  of  International  Jus- 
tice, conceived  in  these  terms : 

Article  1 
A    High   Court   of   International 
Justice  is  hereby  established. 

Article  2 
This   Court   shall   be    composed 
of  one  member  for  each  state,  to  be 


^  Translation  made  especially  for  this  print. 


171 


choisi  par  le  groupe  des  delegues  chosen  by  the  group  of  delegates  of 
de  chaque  Etat  a  la  Cour  d'Arbi-  each  state  represented  in  the  court 
trage.  of  arbitration. 


Article  3 
La  Haute  Cour  de  Justice  Inter- 
nationale sera  conipetente  pour 
juger  Ics  crimes  contre  I'ordre 
public  international  et  le  droit  des 
gens  universel,  qui  lui  seront  defe- 
res  par  TAssemblee  pleniere  de  la 
Societe  des  Nations  ou  par  le  Con- 
seil  de  cette  Societe. 

Article  4 

La  Cour  possedera  un  pouvoir 
appreciateur  pour  caracteriser  le 
delit,  fixer  la  peine  et  determiner 
les  moyens  appropries  a  I'execution 
de  la  sentence.  Elles  determinenl 
la  procedure  a  suivre  dans  ce  cas, 
par  son  reglement  d'ordre  intc- 
rieur. 

Reconnaissant  toute  I'importance 
de  cette  proposition. 

En  recommande  I'examen  au 
Conseil  et  a  I'Assemblee  de  la  So- 
ciete des  Nations. 


Article  3 
The  High  Court  of  Justice  shall 
be  competent  to  try  crimes  against 
international  public  order  and  the 
universal  law  of  nations,  which 
shall  be  referred  to  it  by  the  As- 
sembly or  by  the  Council  of  the 
League  of  Nations. 

Article  4 
The  Court  shall  have  power  to 
define  the  nature  of  the  crime,  to 
fix  the  penalty  and  to  prescribe  the 
appropriate  means  of  carn»'ing  out 
the  judgment.  It  shall  formulate 
its  own  rules  of  procedure. 


Recognizing  the  vast  importance 
of  this  proposition. 

Recommends  the  examination 
thereof  to  the  Council  and  the  As- 
sembly of  the  League  of  Nations. 


Troisieme  Voeii 

Le  Comite  Consultatif  de  Juris- 
tes,  reuni  a  la  Haye  pour  elaborer 
le  statut  d'une  Cour  Permanente  dc 
Justice  Internationale, 

Saisit,  avec  satisfaction,  cette  oc- 
casion d'cxprimcr  le  vceu  que 
rAcadcmie  de  Droit  International 
fondce  a  la  Haye  en  1913,  et  dont 
le  fonctionncment  a  ete  arrete  par 
les  circonstances,  entre  aussi  pro- 


Third  Resolution'' 

The  Advisory  Committee  of  Ju- 
rists, assembled  at  The  Hague  to 
draft  a  plan  for  a  Permanent  Court 
of  International  Justice, 

Gladly  avails  itself  of  this  oppor- 
tunity to  express  the  hope  that  the 
Academy  of  International  Law, 
founded  at  The  Hague  in  1913, 
and  whose  operation  has,  owing  to 
circumstances,    been    interrupted, 


Translation  made  especially  for  this  print. 


172 

chainement  que  possible  en  acti-  shall,  as  soon  as  possible,  enter 
vite  a  cote  de  la  Cour  Permanente  upon  its  activity  alongside  of  the 
d'Arbitrage  et  de  la  Cour  Perma-  Permanent  Court  of  Arbitration 
nente  de  Justice  Internationale,  and  the  Permanent  Court  of  Inter- 
au  Palais  de  la  Paix,  a  la  Haye.  national  Justice,  in  the  Peace  Pal- 

ace at  The  Hague. 


Annex  C 

COVENANT  OF  THE  LEAGUE  OF  NATIONS " 

Article  12 

The  Members  of  the  League  agree  that  if  there  should  arise  between 
them  any  dispute  likely  to  lead  to  a  rupture,  they  will  submit  the  matter 
either  to  arbitration  or  to  inquiry  by  the  Council,  and  they  agree  in  no 
case  to  resort  to  war  until  three  months  after  the  award  by  the  arbi- 
trators or  the  report  by  the  Council. 

In  any  case  under  this  Article  the  award  of  the  arbitrators  shall  be 
made  within  a  reasonable  time,  and  the  report  of  the  Council  shall  be 
made  within  six  months  after  the  submission  of  the  dispute. 

Article  13 

The  Members  of  the  League  agree  that  whenever  any  dispute  shall 
arise  between  them  which  they  recognise  to  be  suitable  for  submission  to 
arbitration  and  which  cannot  be  satisfactorily  settled  by  diplomacy,  they 
wifl  submit  the  whole  subject-matter  to  arbitration. 

Disputes  as  to  the  interpretation  of  a  treaty,  as  to  any  question  of 
international  law,  as  to  the  existence  of  any  fact  which  if  established 
would  constitute  a  breach  of  any  international  obligation,  or  as  to  the 
extent  and  nature  of  the  reparation  to  be  made  for  any  such  breach, 
are  declared  to  be  among  those  which  are  generally  suitable  for  sub- 
mission to  arbitration. 

For  the  consideration  of  any  such  dispute  the  court  of  arbitration 
to  which  the  case  is  referred  shall  be  the  Court  agreed  on  by  the  parties 
to  the  dispute  or  stipulated  in  any  convention  existing  between  them. 

The  Members  of  the  League  agree  that  they  will  carry  out  in  full 
good  faith  any  award  that  may  be  rendered,  and  that  they  will  not  re- 


U.  S.  Senate  Document  No.  49,  OGth  Cong.,  1st  sess. 


173 

sort  to  war  against  a  Membec  of  the  League  which  complies  there- 
with. In  the  event  of  any  failure  to  carry  out  such  an  award,  the  Coun- 
cil shall  propose  what  steps  should  be  taken  to  give  effect  thereto. 

Article  14 

Tlie  Council  shall  formulate  and  submit  to  the  Members  of  the 
League  for  adoption  plans  for  the  establishment  of  a  Permanent  Court 
of  International  Justice.  The  Court  shall  be  competent  to  hear  and 
determine  any  dispute  of  an  international  character  which  the  parties 
thereto  submit  to  it.  The  Court  may  also  give  an  advisory  opinion  upon 
any  dispute  or  question  referred  to  it  by  the  Council  or  by  the  Assembly. 

Article  15 

If  there  should  arise  between  Members  of  the  League  any  dispute 
likely  to  lead  to  a  rupture,  which  is  not  submitted  to  arbitration  in  ac- 
cordance with  Article  13,  the  Members  of  the  League  agree  that  they 
will  submit  the  matter  to  the  Council.  Any  party  to  the  dispute  may 
effect  such  submission  by  giving  notice  of  the  existence  of  the  dispute 
to  the  Secretarj^  General,  who  will  make  all  necessary  arrangements 
for  a  full  investigation  and  consideration  thereof.     .     .     . 

Article  16 

Should  any  Member  of  the  League  resort  to  war  in  disregard  of  its 
covenants  under  Articles  12,  13  or  15,  it  shall  ipso  facto  be  deemed  to 
have  committed  an  act  of  war  against  all  other  Members  of  the  League, 
which  hereby  undertake  immediately  to  subject  it  to  the  severance  of  all 
trade  or  financial  relations,  the  prohibition  of  all  intercourse  between 
their  nationals  and  the  nationals  of  the  covenant-breaking  State,  and 
the  prevention  of  all  financial,  commercial  or  personal  intercourse  be- 
tween the  nationals  of  the  covenant-breaking  State  and  the  nationals 
of  any  other  State,  whether  a  Member  of  the  League  or  not.     .     .     . 

Article  17 

In  the  event  of  a  dispute  between  a  Member  of  the  League  and  a 
State  which  is  not  a  Member  of  the  League,  or  between  States  not 
Members  of  the  League,  the  State  or  States  not  Members  of  the  League 
shall  be  invited  to  accept  the  obligations  of  membership  in  the  League 
for  the  purposes  of  such  dispute,  upon  such  conditions  as  the  Council 
may  deem  just.  If  such  invitation  is  accepted,  the  provisions  of  Articles 
12  to  16  inclusive  shall  be  applied  with  such  modifications  as  may  be 
deemed  necessars'  bv  the  Council.     .     .     . 


174 

Article  2J 

Nothing  in  this  Covenant  shall  be  deemed  to  affect  the  validity  of 
international  engagements,  such  as  treaties  of  arbitration  or  regional 
understandings  like  the  Monroe  doctrine,  for  securing  the  maintenance 
of  peace. 


APPENDIX 


DRAFT  CONVENTION  FOR  THE  CREATION  OF  A  COURT  OF  ARBI- 
TRAL JUSTICE,  ADOPTED  AND  RECOMMENDED  TO  THE 
POWERS  BY  THE  SECOND  HAGUE   PEACE 
CONFERENCE,  OCTOBER  18,  1907^ 

Part  I. — Constitution  of  the  Court  of  Arbitral  Justice 

xVrticle  1 
With  a  view  to  promoting  the  cause  of  arbitration,  the  contracting 
Powers  agree  to  constitute,  without  altering  the  status  of  the  Permanent 
Court  of  Arbitration,  a  Court  of  Arbitral  Justice,  of  free  and  easy  access, 
composed  of  judges  representing  the  various  juridical  systems  of  the 
world,  and  capable  of  ensuring  continuity  in  arbitral  jurisprudence. 

Article  2 

The  Court  of  Arbitral  Justice  is  composed  of  judges  and  deputy 
judges  chosen  from  persons  of  the  highest  moral  reputation,  and  all  ful- 
filling conditions  qualifying  them,  in  their  respective  countries,  to  oc- 
cupy high  legal  posts  or  be  jurists  of  recognized  competence  in  matters 
of  international  law. 

The  judges  and  deputy  judges  of  the  Court  are  appointed,  as 
far  as  possible,  from  the  members  of  the  Permanent  Court  of  Arbitra- 
tion. The  appointment  shall  be  made  within  the  six  months  following 
the  ratification  of  the  present  Convention. 

Article  3 

The  judges  and  deputy  judges  are  appointed  for  a  period  of  twelve 
years,  counting  from  the  date  on  which  the  appointment  is  notified  to 
the  Administrative  Council  created  by  the  Convention  for  the  pacific 
settlement  of  international  disputes.  Their  appointments  can  be  re- 
newed. 

Should  a  judge  or  deputy  judge  die  or  retire,  the  vacancy  is  filled 
in  the  manner  in  which  his  appointment  was  made.  In  this  case,  the 
appointment  is  made  for  a  fresh  period  of  twelve  years. 

^  The  Proceedings  of  the  Ilac/ue  Peace  Conference:  Translation  of  the  Official 
Texts  (Carnegie  Endowment  for  International  Peace,  1920),  The  Conference  of 
1907,   Vol.    I,   p.    G90. 


178 

Article  4 
The  judges  of  the  Court  of  Arbitral  Justice  are  equal,  and  rank  ac- 
cording to  the  date  on  which  their  appointment  was  notified.  The  judge 
who  is  senior  in  point  of  age  takes  precedence  when  the  date  of  notifica- 
tion is  the  same.  The  deput}-^  judges  are  assimilated,  in  the  exercise  of 
their  functions,  with  the  judges.    They  rank,  however,  below  the  latter. 

Article  5 

The  judges  enjoy  diplomatic  privileges  and  immunities  in  the  exer- 
cise of  their  functions,  outside  their  own  country. 

Before  taking  their  seat,  the  judges  and  deputy  judges  must,  before 
the  Administrative  Council,  swear  or  make  a  solemn  affirmation  to  ex- 
ercise their  functions  impartially  and  conscientiously. 

Article  6 

The  Court  annually  nominates  three  judges  to  form  a  special  dele- 
gation, and  three  more  to  replace  them  should  the  necessity  arise.  They 
may  be  reelected.  They  are  balloted  for.  The  persons  who  secure  the 
largest  number  of  votes  are  considered  elected.  The  delegation  itself 
elects  its  president,  who,  in  default  of  a  majority,  is  appointed  by  lot. 

A  member  of  the  delegation  cannot  exercise  his  duties  when  the 
Power  which  appointed  him,  or  of  which  he  is  a  national,  is  one  of  the 
parties. 

The  members  of  the  delegation  are  to  conclude  all  matters  submit- 
ted to  them,  even  if  the  period  for  which  they  have  been  appointed 
judges  has  expired. 

Article  7 

A  judge  may  not  exercise  his  judicial  functions  in  any  case  in 
which  he  has,  in  any  way  whatever,  taken  part  in  the  decision  of  a 
national  tribunal,  of  a  tribunal  of  arbitration,  or  of  a  commission  of 
inquiry,  or  has  figured  in  the  suit  as  counsel  or  advocate  for  one  of 
the  parties. 

A  judge  cannot  act  as  agent  or  advocate  before  the  Court  of  Arbi- 
tral Justice  or  the  Permanent  Court  of  Arbitration,  before  a  special 
tribunal  of  arbitration  or  a  commission  of  inquiry,  nor  act  for  one  of 
the  parties  in  any  capacity  whatsoever  so  long  as  his  appointment  lasts. 

Article  8 

The  Court  elects  its  president  and  vice  president  by  an  absolute 
majority  of  the  votes  cast.  After  two  ballots,  the  election  is  made  by 
a  bare  majority,  and,  in  case  the  votes  are  even,  by  lot. 


179 

Article  9 

The  judges  of  the  Court  of  Arbitral  Justice  receive  an  annual  salary 
of  6,000  Nelhcrland  florins.  This  salary  is  paid  at  the  end  of  each  half- 
year,  reckoned  from  the  date  on  which  the  Court  meets  for  the  first 
time. 

In  the  exercise  of  their  duties  during  the  sessions  or  in  the  special 
cases  covered  by  the  present  Convention,  they  receive  the  sum  of  100 
florins  per  diem.  They  are  further  entitled  to  receive  a  traveling 
allowance  fixed  in  accordance  with  regulations  existing  in  their  own 
country.  The  provisions  of  the  present  paragraph  are  applicable  also 
to  a  deputy  judge  when  acting  for  a  judge. 

These  emoluments  are  included  in  the  general  expenses  of  the  Court 
dealt  with  in  Article  31,  and  are  paid  through  the  International  Bureau 
created  by  the  Convention  for  the  pacific  settlement  of  international 
disputes. 

Article  10 

The  judges  may  not  accept  from  their  own  Government  or  from 
that  of  an}-^  other  Power  any  remuneration  for  services  connected  with 
their  duties  in  their  capacity  of  members  of  the  Court. 

Article  11 

The  seat  of  the  Court  of  Arbitral  Justice  is  at  The  Hague,  and 
cannot  be  transferred,  unless  absolutely  obliged  by  circumstances, 
elsewhere. 

The  delegation  may  choqse,  with  the  assent  of  the  parties  con- 
cerned, another  site  for  its  meetings,  if  special  circumstances  render 
such  a  step  necessary. 

Article  12 

The  Administrative  Council  fulfils  with  regard  to  the  Court  of 
Arbitral  Justice  the  same  functions  as  to  the  Permanent  Court  of 
Arbitration. 

Article  13 

The  International  Bureau  acts  as  registry  to  the  Court  of  Arbitral 
Justice,  and  must  place  its  offices  and  staff  at  the  disposal  of  the  Court. 
It  has  charge  of  the  archives  and  carries  out  the  administrative  work. 

The  secretary  general  of  the  Bureau  discharges  the  functions  of 
registrar. 

The  Jiecessarj-^  secretaries  to  assist  the  registrar,  translators  and 
shorthand  writers  are  appointed  and  sworn  in  by  the  Court. 


180 

Article  14 

The  Court  meets  in  session  once  a  year.  The  session  opens  the 
third  Wednesday  in  June,  and  lasts  until  all  the  business  on  the  agenda 
has  been  transacted. 

The  Court  does  not  meet  in  session  if  the  delegation  considers  that 
such  meeting  is  unnecessary.  However,  when  a  Power  is  party  in  a 
case  actually  pending  before  the  Court,  the  pleadings  in  which  are 
closed,  or  al30ut  to  be  closed,  it  may  insist  that  the  session  should  be 
held. 

When  necessary,  the  delegation  may  summon  the  Court  in  extra- 
ordinary session. 

Article  15 

A  report  of  the  doings  of  the  Court  shall  be  drawn  up  every  year 
by  the  delegation.  This  report  shall  be  forwarded  to  the  contracting 
Powers  through  the  International  Bureau.  It  shall  also  be  communi- 
cated to  the  judges  and  deputy  judges  of  the  Court. 

Article  16 

The  judges  and  deputy  judges,  members  of  the  Court  of  Arbitral 
Justice,  can  also  exercise  the  functions  of  judge  and  deputy  judge  in 
the  International  Prize  Court. 

Part  II. — Competency  and  Procedure 
Article  17 

The  Court  of  Arbitral  Justice  is  competent  to  deal  with  all  cases 
submitted  to  it,  in  virtue  either  of  a  general  undertaking  to  have  re- 
course to  arbitration  or  of  a  special  agreement. 

Article  18 

The  delegation  is  competent: 

1.  To  decide  the  arbitrations  referred  to  in  the  preceding  article, 
if  the  parties  concerned  are  agreed  that  the  summary  procedure,  laid 
down  in  Part  IV,  Chapter  IV,  of  the  Convention  for  the  pacific  settle- 
ment of  international  disputes  is  to  be  applied. 

2.  To  hold  an  inquii-y  under  and  in  accordance  with  Part  111  of  the 
said  Convention,  in  so  far  as  the  delegation  is  entrusted  with  such  in- 
quiry by  the  parties  acting  in  common  agreement.  With  the  assent  of 
the  parties  concerned,  and  as  an  exception  to  Article  7,  paragraph  1, 
the  members  of  the  delegation  who  have  taken  part  in  the  inquiry  may 


181 

sit  as  judges,  if  the  case  in  dispute  is  submitted  to  the  arbitration  of 
the  Court  or  of  the  delegation  itself. 

Article  19 

The  delegation  is  also  competent  to  settle  the  coinpromis  referred- 
to  in  Article  52  of  the  Convention  for  the  pacific  settlement  of  inter- 
national disj)utes  if  the  parties  arc  agreed  to  leave  it  to  the  Court. 

It  is  ccjually  competent  to  do  so,  even  when  the  request  is  only 
made  by  one  of  the  parties  concerned,  if  all  attempts  have  failed  to 
reach  an  understanding  through  the  diplomatic  channel,  in  the  case  of: 

1.  A  dispute  covered  by  a  general  treaty  of  arbitration  concluded 
or  renewed  after  the  present  Convention  has  come  into  force,  providing 
for  a  compromis  in  all  disputes,  and  not  either  explicitly  or  implicitly 
excluding  the  settlement  of  the  coinpromis  from  the  competence  of  the 
delegation.  Recourse  cannot,  however,  be  had  to  the  Court  if  the  other 
party  declares  that  in  its  opinion  the  dispute  does  not  belong  to  the 
categorA^  of  questions  to  be  submitted  to  compulsory  arbitration,  unless 
the  treaty  of  arbitration  confers  upon  the  arbitration  tribunal  the  power 
of  deciding  this  prcliminaiy  question. 

2.  A  dispute  arising  from  contract  debts  claimed  from  one  Power 
bj'  another  Power  as  due  to  its  nationals,  and  for  the  settlement  of 
which  the  offer  of  arbitration  has  been  accepted.  This  arrangement  is 
not  applicable  if  acceptance  is  subject  to  the  condition  that  the  com- 
oromis  should  be  settled  in  some  other  w^ay. 

Article  20 

Each  of  the  parties  concerned  may  nominate  a  judge  of  the  Court 
to  take  part,  with  power  to  vote,  in  the  examination  of  the  case  sub- 
mitted to  the  delegation. 

If  the  delegation  acts  as  a  commission  of  inquiry,  this  task  may  be 
entrusted  to  persons  other  than  the  judges  of  the  Court.  The  traveling 
expenses  and  remuneration  to  be  given  to  the  said  persons  are  fixed 
and  borne  by  the  Powers  appointing  them. 

Article  21 
Tlie  contracting  Powers  only  may  have  access  to  the  Court  of  Arbi- 
tral Justice  set  up  by  the  present  Convention. 

Article  22 
The  Court  of  Arbitral  Justice  follows  the  rules  of  procedure  laid 
down  in  the  Convention  for  the  pacific  settlement  of  international  dis- 
putes, except  in  so  far  as  the  procedure  is  laid  down  in  the  present 
Convention. 


182 

Article  23 
The  Court  determines  what  language  it  will  itself  use  and  what 
languages  maj'^  be  used  before  it. 

Article  24 
The  International  Bureau  serves  as  channel  for  all  communications 
to  be  made  to  the  judges  during  the  interchange  of  pleadings  provided 
for  in  Article  63,  paragraph  2,  of  the  Convention  for  the  pacific  settle- 
ment of  international  disputes. 

Article  25 

For  all  notices  to  be  served,  in  particular  on  the  parties,  witnesses, 
or  experts,  the  Court  may  apply  direct  to  the  Government  of  the  Power 
on  whose  territory  the  service  is  to  be  carried  out.  The  same  rule  ap- 
plies in  the  case  of  steps  being  taken  to  procure  evidence. 

The  requests  addressed  for  this  purpose  can  only  be  rejected  when 
the  Power  applied  to  considers  them  likely  to  impair  its  sovereign 
rights  or  its  safety.  If  the  request  is  complied  with,  the  fees  charged 
must  only  comprise  the  expenses  actually  incurred. 

The  Court  is  equally  entitled  to  act  through  the  Power  on  whose 
territory  it  sits. 

Notices  to  be  given  to  parties  in  the  place  where  the  Court  sits 
may  be  served  through  the  International  Bureau. 

Article  26 

The  discussions  are  under  the  control  of  the  president  or  vice 
president,  or,  in  case  they  are  absent  or  cannot  act,  of  the  senior  judge 
present. 

The  judge  appointed  by  one  of  the  parties  cannot  preside. 

Article  27 

The  Court  considers  its  decisions  in  private,  and  the  proceedings 
are  secret. 

All  decisions  are  arrived  at  by  a  majority  of  the  judges  present. 
If  the  number  of  judges  is  even  and  equally  divided,  the  vote  of  the 
junior  judge,  in  the  order  of  precedence  laid  down  in  Article  4,  para- 
graph 1,  is  not  counted. 

Article  28 
The  judgment  of  the  Court  must  give  the  reasons  on  which  it  is 
based.     It  contains  the  names  of  the  judges   taking  part  in  it;  it  is 
signed  by  the  president  and  registrar. 


183 

Article  29 

Each  party  pays  its  own  costs  and  an  equal  share  of  the  costs  of 
the  trial. 

Article  30 

The  provisions  of  Articles  21  to  29  are  applicable  by  analogy  to  the 
procedure  before  the  delegation. 

When  the  right  of  attaching  a  member  to  the  delegation  has  been 
exercised  by  one  of  the  parties  only,  the  vote  of  the  member  attached 
is  not  recorded  if  the  votes  are  evenly  divided. 

Article  31 

The  general  expenses  of  the  Court  are  borne  by  the  contracting 
Powers. 

The  Administrative  Council  applies  to  the  Powers  to  obtain  the 
funds  requisite  for  the  working  of  the  Court. 

Article  32 

The  Court  itself  draws  up  its  own  rules  of  procedure,  which  must 
be  communicated  to  the  contracting  Powers. 

After  the  ratification  of  the  present  Convention  the  Court  shall 
meet  as  early  as  possible  in  order  to  elaborate  these  rules,  elect  the 
president  and  vice  president,  and  appoint  the  members  of  the  delega- 
tion. 

Article  33 

The  Court  may  propose  modifications  in  the  provisions  of  the 
present  Convention  concerning  procedure.  These  proposals  are  com- 
municated through  the  Netherland  Government  to  the  contracting 
Powers,  which  will  consider  together  as  to  the  measures  to  be  taken. 

Part  111. — Final  Provisions 
Article  34 

The  present  Convention  shall  bo  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  proces-verbal  of  the  deposit  of  each  ratification  shall  be  drawn 
up,  of  which  a  duly  certified  copy  shall  be  sent  through  the  diplomatic 
channel  to  all  the  signatory  Powers. 


184 

Article  35 

The  Convention  shall  come  into  force  six  months  after  its  ratifica- 
tion. 

It  shall  remain  in  force  for  twelve  years,  and  shall  be  tacitly  re- 
newed for  periods  of  twelve  years,  unless  denounced. 

The  denunciation  must  be  notified,  at  least  two  years  before  the 
expiration  of  each  period,  to  the  Netherland  Government,  which  will 
inform  the  other  Powers. 

The  denunciation  shall  only  have  effect  in  regard  to  the  notifying 
Power.  The  Convention  shall  continue  in  force  as  far  as  the  other 
Powers  are  concerned. 

METHODS  FOR  THE  CONSTITUTION  OF  A  PERMANENT  COURT 
OF  INTERNATIONAL  JUSTICE,  PROPOSED  TO  THE 
SECOND  HAGUE  PEACE  CONFERENCE,  1907^ 

The  experience  of  The  Hague  of  1^07  showed  that  the  great  ditfi- 
culty  in  the  creation  of  an  international  judicial  tribunal  sprang  from 
the  number  of  the  states  of  the  world  and  the  assertion  of  the  principle 
that  all  states  are  equal  before  the  law.  A  Court  which  contained  rep- 
resentatives of  all  states  would  be  too  big.  If  a  Court  of  less  size  is  to 
be  constituted,  the  question  arises,  by  whom  and  how  is  the  selection 
of  judges  to  be  made?     This  question  was  found  insoluble  in  1907. 

If  it  were  possible  to  find  any  scheme  which  is  not  open  to  objec- 
tion, theoretical  or  practical,  we  should  not  have  had  to  record  the 
failure  of  1907.  When  once  we  abandon  the  scheme  which  allows  each 
state  to  appoint  a  member  directly  to  the  Court,  we  meet  wdth  difficul- 
ties; for  every  alternative  scheme  involves  selection.  Will  a  great 
Power, — at  any  rate  until  it  is  certain  that  the  selection  will  be  made 
without  any  political  bias, — agree  to  any  scheme  which  does  not  give  it 
a  very  good  chance  of  having  one  of  its  nationals  on  the  Court?  And, 
even  if  assured  that  the  selection  would  be  made  purely  on  considera- 
tions of  merit,  will  it  not  desire  to  have  one  of  its  nationals  on  the 
Court,  not  necessarily  as  a  representative  of  its  interests  but  as  a  repre- 
sentative of  its  dignity  and  perhaps  of  its  peculiar  legal  system.  It 
being  impossible  for  all  the  non-great  Powers  to  have  a  national  on 
the  Court,  as  near  an  approach  as  possible  must  be  made  to  a  scheme 


^  Secretariat  of  tlie  League  of  Nations,  Me  mo  ran  (him  on  the  Different  Questions 
arising  in  connection  with  the  Establishment  of  the  Permanent  Court  of  International 
Justice  (The  Hague,  1920),  Sec.  5,  p.  21. 


185 

wliich  gives  them  individually  or  collectively  an  equal  voice  with  the 
great  ])owers  in  the  selection  of  the  personnel  of  the  Court.  The  difli- 
culty  is  to  find  such  a  scheme,  a  scheme  which  will  give  due  weight  to 
actual  facts  while  not  offending  susceptihilities.  Another  difficulty  is 
this : — In  many  of  the  schemes  now  to  he  referred  to  a  selection  is  to  be 
made  between  nominees  put  forward  by  the  various  states;  but  will  the 
states  be  able  to  find  persons  of  the  great  position  and  influence 
required  who  are  willing  to  have  their  relative  merits  discussed  and 
voted  on?- 

Apart  from  these  difficulties  of  selection — as  regards  mode  and  ma- 
terial— answers  to  the  following  questions  are  given  in  the  various 
schemes  now  to  be  set  out: 

Must  the  candidates  be  lawyers  by  profession  (judges,  jurists, 
etc.)  ?  In  order  to  lessen  the  nationalistic  factor  in  the  Court 
shall  states  be  required  to  nominate  other  persons  than  their 
own  nationals? 

If  the  members  of  the  Court  are  to  be  elected,  are  they  to  be 
elected  one  by  one  or  en  bloc? 

Is  any  limit  to  be  placed  on  the  number  of  judges  who  may 
belong  to  the  same  country? 

What  is  to  be  the  size  of  the  full  Court? 

For  how  long  are  judges  to  be  appointed? 

In  the  formation  of  a  w^orking  Court  for  any  given  case  are 
the  disputant  states  to  have  a  right  of  challenge? 

How  are  the  vacancies  to  be  filled  up? 

A. —  (1)  Reference  may  first  be  made  to  the  various  schemes  pro- 
pounded at  The  Hague  in  1907  for  the  establishment  of  an  International 
Court  of  Justice. "* 

The  Russian  proposal  was  that  one  of  the  matters  to  be  dealt  with 
annually  by  the  (so-called)  "Cour  Permanente  d'Arbitrage"  of  The 
Hague  should  be  the  election,  by  ballot,  of  three  of  its  members  to  be, 
for  the  year  following,  ready  to  form  at  once  the  "Tribunal  Permanent 
d'Arbitrage"  (See  Actes  et  documents,  Vol.  II,  p.  1030). 

(2)  The  proposal  of  the  United  States  of  America  contained  the 
following  Articles: 

I.  A  ])ermaiu'nt  Court  of  Arbitration  shall  be  created,  com- 
posed of  fifteen  judges  enjoying  the  highest  moral  consideration 
and  admitted  competence  on  questions  of  international  law;  they 
and  their  successors  shall  be  chosen  in  the  way  to  be  fixed  by 


^  See  Rapport  Loder,  )).  10'2.  wliere  similar  difficulties  are  indicated. 
^  See  Weliberg,  in  Das  Werk  vom  Ilaag,  Cliap.  IV  (5). 


186 

this  Conference,  but  so  that  the  various  systems  of  law  and  pro- 
cedure and  the  various  languages  shall  be  suitably  represented  in 
the  personnel  of  the  Court.     The  judges  shall  be  appointed  for 

years,  or  until  their  successors  shall  be  appointed  and 

shall  have  accepted. 

In  no  case  (unless  the  Parties  expressly  agree)  shall  a  judge 
take  part  in  the  consideration  or  decision  of  any  matter  before 
the  Court  when  his  State  is  one  of  the  Parties. 

(See  Actes  et  documents,  1907,  Vol  II,  pp.  1031-2.) 

It  is  stated  (Holls  cited  in  Lammasch,  op.  cit.)  that  the  United 
States  wished  the  nomination  of  candidates  to  be  made  by  the  Supreme 
Courts  of  the  countries  concerned,  and  not  by  their  Foreign  OfTices. 

(3)  Bulgaria  proposed  amendments  to  the  scheme  of  the  United 
States,  whereby  (i)  One-third  of  the  Court  of  fifteen  judges  was  to  be 
chosen  afresh  every  third  year;  and  whereby  (ii)  Article  III  was  to 
contain  the  following  provisions: — 

Each  of  the  Parties  to  a  dispute  has  the  right  to  challenge, 

(a)   A  judge  of  the  nationality  of  its  opponent; 
(5)   A  judge  who  has  previously  expressed  an  opinion  on 
the  affair  prejudicial  to  this  Party, 

Each  of  the  judges  shall  be  entitled  to  withdraw  from  the 
cognisance  of  an  affair  when  he  foresees  in  one  way  or  another 
that  his  participation  would  imperil  the  confidence  due  to  the 
judicial  authority. 

{Actes  et  documents,  1907,  Vol.  II,  p.  1033.) 

(4)  A  draft  Convention  was  subsequently  submitted  by  Germany, 
the  United  States  and  Great  Britain  jointly.  It  contained,  in  its  final 
edition,  the  following  Articles: 

2.  The  International  Court  of  Justice  is  composed  of  judges 
and  deputy-judges  chosen  from  persons  of  the  highest  moral 
reputation,  and  all  fulfilling  conditions  qualifying  them,  in  their 
respective  countries,  to  occupy  high  legal  posts,  or  be  jurists  of 
recognized  competence  in  matters  of  international  law. 

The  Judges  and  Deputy-Judges  of  the  Court  shall  be  ap- 
j)ointed  by  the  signatory  Powers,  as  far  as  possible,  from  the 
members  of  the  Permanent  Court  of  Arl)itration, 

3.  The  Judges  and  Deputy-Judges  are  appointed  for  a  period 
of  twelve  years,  reckoned  from  the  date  on  which  the  appoint- 
ment is  notified  to  the  Administrative  Council  created  by  the 
Convention  of  29th  July,  1899.  Their  appointments  can  be  re- 
newed. 

Should  one  of  the  Judges  or  Deputy-Judges  die  or  resign, 
the  same  procedure  is  followed  in  filling  the  vacancy  as  was  fol- 
lowed in  appointing  him.  In  this  case,  the  appointment  is  made 
for  a  fresh  period  of  twelve  years. 


187 

4.  Tho  Judges  of  the  International  Court  of  Justice  are  equal 
amongst  themselves,  and  rank  according  to  the  date  of  the  no- 
tification of  their  appointment  (Article  3,  para.  1),  and,  if  they 
sit  in  accordance  witli  a  roster  (Article  7,  para.  2),  according  to 
the  date  of  their  entrance  on  their  functions.  The  Judge  who  is 
senior  in  point  of  age  takes  precedence  when  the  date  of  notifi- 
cation is  the  same. 

The  Deputy-Judges  are  assimilated  in  the  exercise  of  their 
functions  to  the  Judges.     They  rank,  however,  after  the  latter.* 

7.  The  Judges  and  Deputy-Judges  sit  in  the  order  shown  in 
the  annexed  schedule. 

The  functions  of  Judge  and  of  Deputy-Judge  may  be  per- 
formed by  the  same  person  if  this  is  compatible  with  the  roster 
shown  in  the  above-named  schedule.  Subject  to  the  same  con- 
dition, the  same  Judge  may  be  appointed  by  several  Powers. 

8.  If  one  of  the  Parties  to  a  dispute  has  not,  according  to 
the  roster,  a  judge  sitting  in  the  Court,  it  can  claim  that  the  judge 
appointed  by  it  shall  take  part  in  the  judgment  of  the  dispute. 
In  this  case  it  is  determined  by  lot  which  of  the  judges  on  the 
roster  for  the  given  occasion  is  to  withdraw,  this  exclusion  is 
not  to  apply  to  the  judge  named  by  the  other  party  to  the  dis- 
pute. 

If  several  Powers  are  joint-parties  in  the  same  dispute,  the 
foregoing  provision  only  applies  when  none  of  them  already  has 
a  judge  sitting  in  the  Court.  If  none  of  them  already  has  a 
judge  sitting  in  the  Court,  it  is  for  the  said  Parties  to  come  to  an 
understanding  and,  if  need  be,  to  determine  the  appointment  of 
the  judge  by  lot. 

10.  A  judge  may  not  exercise  his  judicial  functions  in  any 
case  in  which  he  has,  in  any  way  whatever,  taken  part  in  the 
decision  of  a  National  Tribunal,  of  a  Tribunal  of  Arbitration,  or 
of  a  Commission  of  Enquiry,  or  has  figured  in  the  suit  as  Coun- 
sel or  advocate  for  one  of  the  Parties. 

No  judge  can  act  as  agent  or  advocate  before  the  Court,  or 
the  Permanent  Court  of  Arbitration,  before  a  Special  Tribunal 


*  In  the  three  earlier  editions  of  the  joint  project  Art.  (>  provided: 

La  Cour  fonctionne  au  nombre  de  dix-sept  juges,  neuf  juges  constituent 
le  quorum  necessaire. 

I.e  juge  absent  ou  empeche  est  remplace  par  le  suppleant. 
And  according  to  Article  7. 

The  judges  appointed  by  the  eight  great  Powers  (Germany,  United 
States,  Austria-Hungary,  France.  Great  Britain,  Italy.  Japan  and  Russia) 
were  always  to  sit,  while  the  judges  and  deputy-judges  appointed  by  the 
other  Powers  were  to  sit  in  accordance  with  a  rota. 

Articles  n  and  7  did  not  appear,  however,  in  the  joint  projet  which  was  voted 
bv  the  Commission. 


188 

of  Arbitration  or  a  Commission  of  Enquiry,  nor  act  therein  for 
one  of  the  parties  in  any  capacity  whatsoever  so  long  as  his  ap- 
pointment lasts. 

11.  Every  three  years  the  Court  elects  its  President  and 
Vice-President  by  an  absolute  majority  of  the  votes  cast.  After 
two  ballots,  the  election  is  made  by  a  bare  majority  and,  in  case 
the  votes  are  equal,  by  lot. 

29.  .  .  .  The  judge  appointed  by  one  of  the  Parties  to 
the  dispute  cannot  act  as  President. 

{Actes  et  documents,  1907,  Vol.  II,  p.  1054  onwards.) 

Note. —  (1)  In  the  first  edition  of  this  draft  Convention 
the  Article  figuring  above  as  Article  10  contained  in  addition 
a  paragraph  which  ran,  "In  no  case,  except  with  the  consent 
of  the  parties  to  the  dispute,  may  a  judge  take  part  in  the 
examination  or  discussion  of  an  affair  pending  before  the 
International  High  Court  of  Justice,  when  the  Power  which 
appointed  him  is  one  of  the  Parties"  (Actes  et  documents, 
Vol.  II,  p.  1035).  This,  however,  was  in  a  part  of  the  draft 
which  was  submitted  by  the  United  States  and  Great  Britain 
alone  and  in  which  Germany  did  not  concur.  Subsequently, 
the  two  former  Powers,  although  opposed  in  principle  to  the 
presence  in  the  Court  of  a  judge  belonging  to  a  litigant  state, 
gave  way  to  the  latter  Power  in  a  spirit  of  compromise 
(Actes  et  documents,  Vol.  II,  p.  605). 

The  Articles  set  out  above  with  the  exception  of  Articles  6 
to  8  were  incorporated,  with  modifications  in  point  of  form,  in 
the  Draft  Convention  which  was  approved  by  the  Commission 
entrusted  with  the  drafting  of  the  Convention.  In  this  Draft 
the  name  given  to  the  Court  was  changed  to  "Court  of  Arbitral 
Justice." 

The  Draft  Convention,  however,  never  got  bcA'ond  the  Draft 
stage,  owing  to  the  impossibility  of  securing  agreement  as  to  the 
constitution  of  the  Court.  Schemes  which  should  satisfy  the  de- 
mand of  the  smaller  States  for  equality  left  it  possible  that  the 
larger  States  would  be  swamped  and  necessitated  a  Court  which 
would  be  unwieldily  big.  The  total  result  was  that  the  Confer- 
ence expressed  in  its  Final  Act  a  voeu  as  follows: 

Tlie  Conference  calls  the  attention  of  the  signatory  Powers  to  the 
advisability  of  adopting  the  annexed  draft  Convention  for  the  creation  of  a 
Judicial  Arbitration  Court  and  of  bringing  it  into  force  as  soon  as  an  agree- 
ment has  been  reached  respecting  the  selection  of  the  judges  and  the  consti- 
tution of  the  Court. 

(5)   M.   Ruy  Barbosa,   Brazil,   presented   a   scheme   containing  the 
following  Articles  among  others: 


189 

(I)  111  creating  Ihc  new  Permanent  Court  of  Arbitration 
each  Power  shall  nominate,  subject  to  the  conditions  laid  down 
in  the  Convention  of  189f),  a  person  able,  as  member  of  this  in- 
stitution, to  exercise  worthily  the  functions  of  arbiter. 

It  shall  also  be  entitled  to  appoint  a  Deputy-Judge. 

Two  or  more  Powers  may  agree  on  a  joint  nomination  of 
their  representatives  on  the  Court. 

The  same  person  may  be  nominated  by  different  Powers. 

The  signatory  Powers  shall,  so  far  as  possible,  choose  their 
representatives  on  the  new  Court  from  members  of  the  existing 
Court  (i.  e.,  the  so-called  "Permanent  Court  of  Arbitration"  of 
the  Hague). 

3.  The  persons  appointed  shall  sit  for  nine  years  and  are 
only  removable  in  cases  where,  in  accordance  with  the  law  of 
their  respective  countries,  judges  ordinarily  irremovable  may 
have  their  appointment  ended. 

5.  In  full  sessions  of  the  Court  at  least  a  fourth  of  the  ap- 
pointed members  must  be  present. 

In  order  to  insure  the  possibility  of  this,  the  members  ap- 
pointed shall  be  divided  into  three  groups,  in  the  alphabetical 
order  of  the  signatures  of  the  Convention. 

The  Judges  arranged  in  each  of  these  groups,  shall  sit,  in 
accordance  with  a  roster,  for  three  years,  during  which  they 
shall  be  bound  to  reside  in  a  place  from  which  they  can  arrive 
at  The  Hague  in  twenty-four  hours  after  the  receipt  of  a  tele- 
graphic summons. 

All  the  members  of  the  Court,  however,  are  entitled,  should 
they  so  wish,  to  sit  at  any  time  in  full  sessions,  even  though  they 
do  not  belong  to  the  group  which  is  speciallv  summoned. 

^(Actes  et  documents,  1907,  Vol. 'll,  pp.  620,  1047.) 

(6)  On  Sept.  5th,  1907,  Mr.  Choate  delivered  a  discourse  to  the 
Comite  d'Examen  in  which,  among  other  things,  he  summarised  some 
of  the  schemes  for  the  constitution  of  the  Court  which  had  been  pro- 
posed as  alternatives  to  the  scheme  jointly  formulated  by  Germany, 
the  United  States  and  Great  Britain.     In  this  connection  he  said: 

As  was  expected,  a  very  interesting  counter-scheme  was  pro- 
posed based  upon  the  alleged  equality  not  only  in  sovereignty 
but  in  all  other  respects  of  all  the  States.  It  proposed  to  abolish 
the  existing  court,  and  for  a  new  court  to  be  constituted  consist- 
ing of  forty-five  judges,  one  to  l)e  appointed  by  each  State,  and 
these  to  be  divided  into  groups  in  alj)habetical  order  of  fifteen 
each,  which  were  to  sit  for  alternate  periods  of  three  years. 
This  scheme  was  offered  as  an  illustration  of  what  was  possible, 
based  upon  a  recognition  of  the  absolute  equality  of  all  States. 
Two  objections  to  it  were  suggested, — first,  that  an  allotment  of 
periods  by  alphabetical  order  was  really  the  creation  of  a  court 


190 

by  chance,  and,  second,  that  it  deprived  each  nation  of  any  hand 
or  voice  in  the  court  for  six  years  out  of  the  nine, 

(7)  On  18  Sept.,  1907,  when  the  difficulty  of  obtaining  an  agree- 
ment concerning  the  constitution  of  the  proposed  Judicial  Arbitration 
Court  was  threatening  the  project  with  the  failure  which  ultimately 
befell  it,  Mr,  Choate  made  the  following  "Proposition  relative  to  the 
composition  of  the  Court  of  Arbitral  Justice": 

(I)  Each  Signatory  Power  shall  have  the  right  of  nominating 
a  Judge  or  a  Deputy-Judge,  qualified,  and  willing,  to  accept  these 
posts,  and  may  transmit  the  names  to  the  international  Bureau. 

(II)  The  Bureau  shall  thereupon  draw  up  a  list  of  all  the 
nominated  persons,  indicating  the  nations  which  have  nominated 
them,  and  shall  transmit  it  to  all  the  Signatory  Powers. 

(III)  Each  Signatory  Power  shall  indicate  to  the  Bureau 
which  of  the  persons  so  nominated  it  chooses  as  judges  and 
deputy-judges,  each  nation  voting  for  fifteen"  judges  and  deputy- 
judges  at  the  same  time. 

(IV)  When  the  Bureau  has  received  the  voting-list  it  shall 
draw  up  a  list  of  the  fifteen  persons  who  have  received  the 
greatest  number  of  votes  as  judges  and  deputj^-judges, 

(V)  In  case  of  equality  of  votes  in  the  selection  of  the  fif- 
teen judges  and  fifteen  deputy-judges,  the  decision  shall  be  by 
lot  drawn  by  the  Bureau. 

(VI)  In  case  of  a  vacancy  arising  in  the  post  of  judge  or 
deputy-judge,  the  vacancy  shall  be  filled  by  the  State  which  pro- 
posed the  judge  or  deputy-judge  whose  seat  is  vacant," 

(Actes  et  documents,  1907,  Vol,  II,  pp,  698-9). 

B, — Apart  from  the  abortive  attempt  to  create  a  Court  of  interna- 
tional Justice,  the  Hague  Conference  of  1907  agreed  on  a  Convention 
(No,  1  of  that  year)  relative'  to  the  pacific  settlement  of  international 
disputes.  The  Articles  of  that  Convention  which  provide  for  the  mode 
of  constituting  the  court  are  as  follows: — 

44.  Each  Contracting  Power  selects  four  persons  at  the  most, 
of  known  competency  in  questions  of  international  law,  of  the 
highest  moral  reputation,  and  disposed  to  accept  the  duties  of 
Arbitrator. 

The  persons  thus  selected  are  inscribed,  as  Members  of  the 
Court,  in  a  list  which  shall  be  notified  to  all  the  Contracting 
Powers  by  the  Bureau, 

Any  alteration  in  the  list  of  Arbitrators  is  brought  by  the 
Bureau  to  the  knowledge  of  the  Contracting  Powers, 

Two  or  more  Powers  may  agree  on  the  selection  in  common 
of  one  or  more  Members, 

The  same  person  may  be  selected  by  different  Powers. 


191 

The  Members  of  the  Court  are  appointed  for  a  term  of  six 
years.     Their  appointments  can  be  renewed. 

Should  a  Member  of  the  Court  die  or  resign,  the  same  proce- 
dure is  followed  in  filling  the  vacancy  as  was  followed  in  ap- 
pointing him.  In  this  case  the  appointment  is  made  for  a  fresh 
period  of  six  years. 

(45)  When  the  Contracting  Powers  wish  to  have  recourse 
to  the  Permanent  Court  for  the  settlement  of  a  difference  which 
has  arisen  between  them,  the  Arbitrators  called  upon  to  form 
the  Tribunal  to  decide  this  difference  must  be  chosen  from  the 
general  list  of  Members  of  the  Court. 

Failing  the  composition  of  the  Arbitration  Tribunal  by 
agreement  between  the  parties,  the  following  course  shall  be 
pursued : 

Each  party  appoints  two  Arbitrators,  of  whom  one  only  can 
be  its  national  and  chosen  from  among  the  persons  selected  by  it 
as  Members  of  the  Permanent  Court.  These  Arbitrators  together 
choose  an  Umpire. 

The  proviso  as  to  the  nationality  of  the  Arbitrators  was 
not  in  the  corresponding  Art.  of  1899.  For  history  of  its 
origin  and  insertion  in  1907,  see  Actes  et  documents,  1907, 
Vol.  II,  pp.  735-6. 

Lammasch  proposed: — 

"No  judge  who  is  a  national  of  one  of  the  parties  shall 
be  appointed  if  the  Tribunal  is  composed  of  only  three 
members.  "This  was  opposed  by  France  and  Great  Britain, 
and  negatived,  ihid.,  p.  741." 

If  the  votes  are  equally  divided,  the  choice  of  an  Umpire  is 
entrusted  to  a  third  Power,  selected  by  agreement  between  the 
parties. 

If  an  agreement  is  not  arrived  at  on  this  subject  each  party 
selects  a  different  Power,  and  the  choice  of  the  Umpire  is  made 
in  concert  by  the  Powers  thus  selected. 

If,  \\4thin  two  months'  time,  these  iwo  Powers  cannot  come 
to  an  agreement,  each  of  them  presents  two  candidates  taken 
from  the  list  of  Members  of  the  Permanent  Court,  exclusive  of 
the  Members  selected  by  the  parties  and  not  being  nationals  of 
either  of  them.  Which  of  the  candidates  thus  presented  shall 
be  Umpire  is  determined  by  lot. 

C. — The  Hague  Conference  of  1907  dealt  also  with  the  establishment 
of  an  International  Prize  Court,  the  result  being  embodied  in  Conven- 
tion XII.  As  regards  the  composition  of  the  Court  the  Conference  had 
before  it  proposals  made  by  Germany  and  by  Great  Britain.  Tlie  Ger- 
man proposal  in  this  particular  was  as  follows: — 


192 

4.  The  International  Prize  Court  shall  be  composed  of  five 
members — two  admirals  and  three  members  of  the  Permanent 
Hague  Court.  Within  two  months  of  the  commencement  of 
hostilities,  each  belligerent  must  appoint  an  admiral  and  ad- 
dress itself,  in  addition,  to  a  neutral  Power  so  that  this  last- 
named  Power  may  within  the  two  following  weeks  choose  an- 
other member  among  the  members  of  the  Arbitration  Court 
whom  it  has  appointed.  Within  two  more  weeks  the  two  neu- 
tral Powers  shall  address  themselves  jointly  to  a  third  neutral 
Power  so  that  this  last  named  Power  may  within  the  two  fol- 
lowing weeks  choose  the  fifth  member  among  the  members  of 
the  Arbitration  Court  whom  it  has  appointed. 

7.  The  Prize  Court  shall  elect  its  President  by  an  absolute 
majority  of  votes  among  those  of  its  members  who  are  part  of 
the  permanent  Hague  Arbitration  Court.  In  case  of  need  there 
shall  be  a  ballot. 

(Actes  et  documents,  Vol.  II,  p.  1071.) 

The  British  delegation  proposed  the  following  method  of  consti- 
tuting the  Court: — 

4.  Each  of  the  Signatory  Powders  whose  merchant  marine, 
at  the  time  of  signature  of  the  present  Convention,  exceeds  a 
total  of  800,000  tons  shall,  within  three  months  following  the 
ratification  of  the  present  Act,  nominate  a  jurist  of  known  com- 
petence in  questions  of  International  maritime-law^  and  of  the 
highest  moral  reputation  and  disposed  to  accept  the  functions 
of  judge  in  this  Court.  Each  Power  shall  also  appoint  a  deputy- 
judge  possessing  the  same  qualifications. 

5.  The  President  of  the  Court  shall  be  appointed  by  refer- 
ence to  the  alphabetical  order  of  the  Powers  which  have  nomi- 
nated judges  to  the  Court;  he  shall  hold  this  office  for  a  year  to 
commence  on  the  1st  January  .  .  .  The  President  who  pre- 
sides at  the  beginning  of  a  suit  shall  continue  to  act  until  the 
close  of  the  suit. 

12.  The  Court  .shall  comprise  all  the  judges  and  shall  sit  in 
pleno  with  exception  of  the  judges  nominated  by  the  disputant 
Powders. 

In  case  of  the  absence  of  one  of  the  members  of  the  Court 
so  composed,  he  shall  be  replaced  by  his  deputy-judge. 

(Actes  et  documents,  Vol.  II,  p.  1076.) 

The  German  and  the  British  proposals  were  based  on  totally  dif- 
ferent principles,  and  in  the  issue  certain  elements  were  adopted  from 
each,  as  will  appear  below.  Arts.  10  to  14  of  the  Convention  which 
was  ultimately  arrived  at  run  as  follows: — 

10.  Tlie  International  Prize  Court  is  composed  of  Judges 
and  Deputy-Judges  all  of  whom  must  be  jurists  of  known  profi- 


19:} 

ciency   in   questions   ol    international   maritime-law,   and    of   the 
highest  moral  reputation. 

The  appointment  of  these  Judges  and  Deputy  Judges  shall 
he  made  within  six  months  after  the  ratilieation  of  the  present 
Convention. 

11.  The  Judges  and  Deputj'-Judges  are  appointed  for  a 
period  of  six  years,  reckoned  from  the  date  on  which  the  notifi- 
cation of  their  appointment  is  received  hy  the  Administrative 
Council  established  for  the  Pacific  Settlement  of  International 
Disputes  of  the  29th  Julj',  1899.  Their  appointments  can  be  re- 
newed. 

Should  one  of  the  Judges  or  Deputy-Judges  die  or  resign, 
the  same  procedure  is  followed  in  filling  the  vacancy  as  was 
followed  in  appointing  him.  In  this  case,  the  appointment  is 
made  for  a  fresh  period  of  six  j'^ears. 

12.  The  Judges  of  the  International  Prize  Court  are  all  equal 
in  rank  and  have  precedence  according  to  the  date  on  which  the 
notification  of  their  appointment  was  received  (Art.  11,  para.  1), 
and  if  they  sit  by  rota  (Art.  15,  para.  2),  according  to  the  date 
on  which  they  entered  on  their  duties.  When  the  date  is  the 
same,  the  senior  in  age  takes  precedence. 

The  Deputy  Judges  when  acting  are  in  the  same  position  as 
the  Judges.     They  rank,  however,  after  them. 

14.  The  Court  is  composed  of  fifteen  Judges;  nine  Judges 
constitute  a  quorum. 

A  Judge  who  is  absent  or  prevented  from  sitting  is  replaced 
by  the  Deputy- Judge. 

There  was  little  difTiculty  in  reaching  an  agreement  on  the  Arts, 
named  so  far;  but  how  were  the  fifteen  judges  to  be  obtained?  Neither 
the  German  nor  the  British  scheme  was  followed.  According  to  the 
ultimate  agreement  the  Court  which,  as  proposed  by  Great  Britain, 
was  to  be  a  permanent  one,  was  to  be  composed  of  members  provided 
by  the  great  Powers,  lesser  Powers  contributing  in  proportions  settled 
by  an  annexed  table  (Art.  15,  below).  The  German  proposal  provided 
for  the  representation  of  the  belligerent  captor,  and  the  Convention 
adopts  this  proposal  in  Art.  16.  The  German  proposal  for  the  presence 
of  a  naval  officer  is  adopted  in  Art.  18.     Arts.  15  to  19  are  as  follows: — 

15.  The  Judges  appointed  by  the  following  Contracting 
Powers:  Germany,  the  United  States  of  America,  Austria- 
Hungary,  France,  Great  Britain,  Italy,  Japan  and  Russia,  are 
always  summoned  to  sit. 

The  Judges  and  Deputy  Judges  appointed  by  the  other  Con- 
tracting Powers  sit  by  rota  as  shown  in  the  Table  annexed  to 
the  present  Convention;  their  duties  may  be  performed:  suc- 
cessively by  the  same  persons.  The  same  Judge  may  be  ap- 
pointed by  several  of  the  said  Powers. 


194 

16.  If  a  belligerent  Power  has,  according  to  the  rota,  no 
Judge  sitting  in  the  Court,  it  may  ask  that  the  Judge  appointed 
by  it  shall  take  part  in  the  settlement  of  all  cases  arising  from 
the  war.  Lots  shall  then  be  drawn  as  to  which  of  the  Judges 
entitled  to  sit  according  to  the  rota  shall  withdraw.  This  ar- 
rangement does  not  affect  the  Judge  appointed  by  the  other  bel- 
ligerent. 

17.  No  Judge  can  sit  who  has  been  a  party,  in  any  way  what- 
ever, to  the  sentence  pronounced  by  the  National  Courts,  or  has 
taken  part  in  the  case  as  counsel  or  advocate  for  one  of  the 
parties. 

No  Judge  or  Deputy-Judge  can,  during  his  tenure  of  office, 
appear  as  agent  or  advocate  before  the  International  Prize 
Court,  nor  act  for  one  of  the  parties  in  any  capacity  whatever. 

18.  The  belligerent  captor  is  entitled  to  appoint  a  naval 
officer  of  high  rank  to  sit  as  Assessor,  but  with  no  voice  in  the 
decision.  A  neutral  Power,  which  is  a  party  to  the  proceedings 
or  whose  national  is  a  party,  has  the  same  right  of  appointment; 
if  in  applying  this  last  provision  more  than  one  Power  is  con- 
cerned, they  must  agree  among  themselves,  if  necessary  by  lot, 
on  the  officer  to  be  appointed. 

19.  The  Court  elects  its  President  and  Vice-President  by  an 
absolute  majority  of  the  votes  cast.  After  two  ballots,  the  elec- 
tion is  made  by  a  bare  majority,  and,  in  case  the  votes  are  equal, 
by  lot. 

The  adoption  of  Art.  15  was  not  effected  without  prolonged  and 
strenuous  objections  on  the  part  of  the  smaller  states.  Their  case  was 
championed  by  M.  Ruy  de  Barbosa  (Brazil) ;  he  fought  the  principle 
of  Art.  15  throughout  and  recorded  the  only  vote  given  against  the 
draft  Convention  at  the  sixth  Plenary  meeting  of  the  Conference. 
Brazil  did  not  sign  the  Convention,  and  the  following  states,  when 
signing,  made  reservations  with  regard  to  Art.  15;  Chile,  Cuba,  Ecua- 
dor, Guatemala,  Hayti,  Persia,  Salvador,  Siam,  Turkey  and  Uruguay. 


195 

METHODS  OF  CONSTITUTING  A  PERMANP:NT  TRIBUNAL  OR  A 

COURT  OF  INTERNATIONAL  JUSTICE,  CONTAINED  IN 

OFFICIAL  PROJECTS  OF  VARIOUS  GOVERNMENTS 

Projects  Antedating  the  Peace  Conference  of  Paris 

Convention  of  December  20,  1907,  relating  to  the  creation  of  a  Court  of 
International  Justice  of  Central  America^ 

Article  6 

The  Court  of  Justice  of  Central  America  shall  be  composed  of  5 
judges,  one  of  whom  shall  be  appointed  by  each  of  the  Republics,  and 
who  shall  be  chosen  from  among  the  jurisconsults  possessing  the  qualifi- 
cations prescribed  by  the  law  of  each  of  the  countries  for  the  exercise  of 
the  high  magistracies  and  enjoying  the  highest  reputation  both  from 
the  moral  point  of  view  and  from  the  professional  point  of  view. 

Vacancies  shall  be  filled  by  the  deputy  judges  designated  at  the 
same  time  and  in  the  same  manner  as  the  judges,  and  possessing  the 
same  qualifications  as  the  latter. 

The  presence  of  the  5  judges  constituting  the  tribunal  is  necessary 
to  constitute  the  legal  quorum  required  for  the  decisions  of  the  Court. 

Article  7 

The  legislative  power  of  each  of  the  5  contracting  Republics  shall 
designate  its  respective  judges,  namely,  one  judge  and  two  deputy 
judges.  The  compensation  of  each  judge  shall  be  8,000  pesos  in  Ameri- 
can gold  per  annum,  and  shall  be  paid  to  him  by  the  Treasury-  of  the 
Court.  The  compensation  of  the  judge  of  the  country  in  which  the 
Court  has  its  seat  shall  be  fixed  by  the  Government  of  this  countr\'. 
Furthermore  each  State  shall  furnish  an  annual  contribution  of  2,000 
pesos  to  cover  the  ordinarj'^  and  extraordinai^"^  expenses  of  the 
Tribunal. 

The  Governments  of  the  contracting  Republics  undertake  to  in- 
clude their  respective  quotas  in  their  budgets  and  to  pay  in  advance, 
even.'  three  months,  to  the  Treasury  of  the  Court,  the  sum  incumbent 
upon  them  for  these  services. 


^  Translation.  For  the  French  text,  see  Secretariat  of  the  League  of  Nations, 
Memorandum  sur  les  dijferentes  questions  concernant  VetahUssement  de  la  Cour 
Permanente  de  Justice  Internationale  presente  a  la  Commission  de  Juristes  cJiargee 
de  preparer  le  pro  jet  relative  a  VetahUssement  de  cette  cour,  Annexes  Xos.  1-4, 
pp.   in.   17. 


196 

Article  8 

The  judges  and  the  deputy  judges  shall  be  named  for  a  period  of 
5  years  beginning  from  the  day  upon  which  they  shall  enter  upon  their 
functions.    Thej^  shall  be  eligible  for  reelection. 

In  case  of  death,  resignation  or  permanent  incapacity  of  any  judge, 
the  interested  legislative  Power  shall  provide  for  his  replacement  and 
the  judge  designated  shall  complete  the  period  of  activity  of  his  pre- 
decessor. 

Article  13 

The  Court  of  Justice  of  Central  America  represents  the  national 
conscience  of  Central  America  and,  in  this  capacity,  the  judges  com- 
posing the  Tribunal  shall  not  consider  themselves  as  hindered  in  the 
exercise  of  their  functions  by  the  interest  which  the  Republic  to  which 
they  owe  their  nomination  may  have  in  any  case  or  question  whatso- 
ever. With  regard  to  calling  in  question  or  challenging,  the  rules  of 
procedure  which  the  Court  will  adopt  shall  be  authoritative. 

Treaty  between  the  United  States  and  France  for  the  Advancement  of 
General  Peace,  signed  September  15,  1914  ^ 

Article  2 

The  International  Commission  shall  be  composed  of  five  members 
appointed  as  follows :  Each  Government  shall  designate  two  members, 
only  one  of  whom  shall  be  of  its  own  nationality;  the  fifth  member 
shall  be  designated  by  common  consent  and  shall  not  belong  to  any  of 
the  nationalities  already  represented  on  the  Commission;  he  shall  per- 
form the  duties  of  President. 

In  case  the  two  Governments  should  be  unable  to  agree  on  the 
choice  of  the  fifth  commissioner,  the  other  four  shall  be  called  upon 
to  designate  him,  and  failing  an  understanding  between  them,  the  pro- 
visions of  Article  45  of  the  Hague  Convention  of  1907  shall  be  applied. 

The  Commission  shall  be  organized  within  six  months  from  the 
exchange  of  ratifications  of  the  present  convention. 

The  members  shall  be  appointed  for  one  year  and  their  ap- 
pointment may  be  renewed.  They  shall  remain  in  office  until  super- 
seded or  reappointed,  or  until  the  work  on  which  they  are  engaged  at 
the  time  their  ofiice  expires  is  completed. 


*^  Treaties  for  the  Advancement  of  Peace  between  the  United  States  and  Other 
Powers,  Negotiated  by  the  Honorable  William  J.  Bryan,  Secretary  of  State  of  the 
United  States  (Carnegie  Endowment  for  International  Peace,  1920),  p.  S5. 


197 

Any  vacancies  which  may  arise  (from  death,  resignation,  or  cases 
of  physical  or  moral  incapacity)  shall  be  filled  within  the  shortest 
possible  period  in  the  manner  followed  for  the  original  appointment. 

The  High  Contracting  Parties  shall,  before  designating  the  Com- 
missioners, reach  an  understanding  in  regard  to  their  compensation. 
They  shall  bear  by  halves  the  expenses  incident  to  the  meeting  of  the 
Commission. 

A  Swiss  Project  of  a  Federal  Pact  of  the  League  of  Nations  and  a  Con- 
stitution of  the  League  of  Nations,  November,  1918- 
January,  i9W 

B.    The'  International   Court  of   Justice 

Art.  12.  There  is  established  an  International  Court  of  Justice  ac- 
cessible at  all  times  to  the  contracting  parties. 

Art.  13.  The  International  Court  of  Justice  is  named  by  the  Con- 
ference of  the  States  for  a  period  of  9  years.  Each  State  proposes  at 
least  one  and  at  most  four  candidates  duh'  qualified,  disposed  to  accept 
the  functions  of  judge  and  of  whom  at  least  one  shall  not  be  a  ressortis- 
sant  of  the  said  State.  Each  State  then  designates  15  persons  taken 
from  the  list  thus  composed.  The  15  candidates  who  have  acquired 
the  largest  number  of  votes  are  elected.  In  case  of  withdrawal  or  of 
death  of  the  elected  persons,  or  when,  as  a  result  of  challenging,  the 
number  of  judges  falls  below  15,  the  others  enter  upon  the  functions 
in  the  order  of  the  votes  that  they  have  received. 

Art.  14.  The  7  judges  who  have  received  the  largest  number  of 
votes  constitute  the  Bureau  of  the  Court;  these  7  judges  appoint  from 
their  own  midst,  for  a  period  of  3  years,  a  President,  a  first  Vice  Presi- 
dent and  a  second  Vice  President.  The  4  other  members  act,  as  depu- 
ties, in  the  order  of  their  election.  The  President  of  the  Bureau  also 
presides  over  the  plenan*^  sessions  of  the  Court. 

Art.  15.  The  International  Court  of  Justice  renders  judgment  in 
plenar>^  session  only  in  the  cases  expressly  provided  or  when  the  case 
involves  the  internal  administration  of  the  Court.  It  is  composed  of  5 
judges  when  it  renders  judgment  ordinarily  upon  disputes  which  have 
been  submitted  to  it. 

When  a  dispute  is  pending  before  the  Court,  each  party  must, 
within  a  period  of  four  weeks,  challenge  5  judges.     If  a  party  allows 

'  Translation  of  official  French  text  published  by  tlie  Secretariat  of  the  Leasrue 
of  Nations. 


198 

this  period  to  pass  without  proceeding  to  this  challenge,  the  5  judges 
whom  it  should  have  challenged  are  designated  by  lot;  the  same  man- 
ner of  procedure  is  followed  when  the  challenging  of  the  two  parties 
has  involved  less  than  10  judges. 

If  the  parties  renounce  their  right  of  challenge,  the  Court  is  formed 
of  the  5  judges  elected  b}'^  the  largest  number  of  votes.  Those  of  them 
who  may  have  been  prevented  or  may  be  on  leave  shall  be  replaced 
by  the  judges  who  have  obtained,  after  them,  the  largest  number  of 
votes. 

The  judges  who  are  ressortissants  of  a  State  which  is  a  party,  or 
who  are  in  its  service,  or  who  are  established  upon  its  territory,  are 
challenged.  In  case  the  Court,  according  to  Article  37,  is  competent 
because  the  parties  have  not  been  able  to  come  to  an  agreement  in  due 
time  as  to  the  composition  of  a  tribunal  of  arbitration,  each  party  has 
the  right  to  designate  any  member  of  the  Court  who  cannot  be  chal- 
lenged by  the  adverse  party. 

The  5  judges  who  have  not  been  challenged  elect  the  President 
from  their  midst. 

Art.  16.  The  Seat  of  the  International  Court  of  Justice  is  fixed  by 
the  Conference  of  the  States.  The  latter  draws  up  the  general  rules 
of  procedure  to  be  followed  before  it.    The  Court  makes  it  own  rules. 

Recent  Projects,  Submitted  to  the  Peace  Conference  at  Paris 

Project  of  the  United  States,  submitted  to  the  Commission  of  the  League 
of  Nations,  Paris  Peace  Conference  of  1919^ 

Extract  from  Article  5 

In  case  of  arbitration,  the  matter  or  matters  at  issue  shall  be  re- 
ferred to  arbitrators,  one  of  whom  shall  be  selected  by  each  of  the  par- 
ties to  the  dispute  from  outside  their  own  nationals,  when  there  are  but 
two  such  parties,  and  a  third  by  the  two  thus  selected.  When  there 
are  more  than  two  parties  to  the  dispute,  one  arbitrator  shall  be  nained 
by  each  of  the  several  parties  and  the  arbitrators  thus  nained  shall  add 
to  their  number  others  of  their  own  choice,  the  number  thus  added  to 
be  limited  to  the  number  which  will  suflice  to  give  a  deciding  vote  to 
the  arbitrators  thus  added  in  case  of  a  division  among  the  arbitrators 
chosen  by  the  contending  parties.  In  case  the  arbitrators  chosen  by 
the  contending  parties  cannot  agree  upon  an  additional  arbitrator  or 


U.  S.  Senate  Document  No.  lOO,  G6th  Cong.,  1st  sess.,  p.  256. 


199 

arbitrators,  the  additional  arbitrator  or  arl)itrators  shall  be  chosen  by 
the  Executive  Council. 

On  the  appeal  of  a  party  to  the  dispute  the  decision  of  said  arbi- 
trators may  be  set  aside  by  a  vote  of  three-fourths  of  the  Delegates,  in 
case  the  decision  of  the  arbitrators  was  unanimous,  or  by  a  vote  of  two- 
thirds  of  the  Delegates  in  case  the  decision  of  the  arbitrators  was  not 
unanimous,  but  unless  thus  set  aside  shall  be  finally  binding  and  con- 
clusive. 

When  any  decision  of  arbitrators  shall  have  been  thus  set  aside, 
the  dispute  shall  again  be  submitted  to  arbitrators  chosen  as  hereto- 
fore provided,  none  of  whom  shall,  however,  have  previously  acted  as 
arbitrators  in  the  dispute  in  question,  and  the  decision  of  the  arbitrators 
rendered  in  this  second  arbitration  shall  be  finally  binding  and  con- 
clusive without  right  of  appeal. 

An  extract  relating  to  the  Court  from  the  Draft  Project  for  the  Consti- 
tution of  a  Society  of  Nations,  presented  to  the  Preliminary 
Peace  Conference  at  Paris  by  the  Italian  Government^ 

Chapter  II — International  Court  of  Justice 
Article  18 

An  "International  Court  of  Justice,"  composed  of  judges  named  by 
all  the  contracting  States,  is  established  at  The  Hague.  Each  State  ap- 
points one  judge.  The  nomination  is  made  for  six  years  and  may 
always  be  renewed. 

Article  19 

Everj'  two  years  the  Court  elects  from  among  its  own  members  a 
president  and  a  vice  president.  The  election  takes  place  by  a  majority 
of  the  votes  and  by  a  secret  ballot;  in  case  of  an  equality  of  votes  after 
two  ballots,  the  oldest  person  is  considered  as  elected. 

Article  21 

The  Court  functions  by  forming  a  section  to  judge  each  case.  Each 
section  comprises: 

(1)  The  President  of  the  Court,  or  in  case  of  prevention,  the  Vice 
President; 

(2)  A  judge  chosen  by  each  of  the  litigant  ])arties  from  among  the 
members  of  the  Court; 


^  Translation.     For  a  French  translation  of  Italian  text,  see  Memorandum  of 
the  Secretariat  of  tlie  Leapie  of  Nations,  Annexes  Nos.  1-4,  pp.  2.  3. 


200 

(3)  Four  judges  elected  by  secret  ballot  by  the  Court  from  among 
its  members.  Each  member  votes  for  two  names,  and  those  who  have 
obtained  the  majority  of  the  votes  are  elected.  If,  however,  being  given 
the  number  of  the  parties,  it  happens  that  the  section  is  composed  of 
an  equal  number  of  members,  the  Court  shall  elect  five  judges  and  each 
member  shall  vote  for  three  names.  In  case  of  equality  of  votes,  the 
oldest  person  is  considered  as  elected. 

If  one  of  the  parties  does  not  designate  its  judge,  the  Court  shall 
likewise  elect  him  by  secret  ballot  and  by  special  vote. 

Article  24 
The  constitution  of  the  section  can  not  be  modified  while  the  case 
for  the  judgment  of  which  it  has  been  constituted  is  pending.  When- 
ever one  of  the  judges  is  missing,  he  is  replaced  by  another  judge 
chosen  by  the  parties  or  elected  by  the  Court,  according  to  the  method 
of  nomination  of  the  judge  whom  he  replaces.  The  vacancy  shall  be 
filled  within  the  shortest  possible  period  and  in  every  case  at  latest 
within  the  thirty  days  following  its  notification. 

An  extract  relating  to  the  Court  from  the  Project  for  the  Creation  of  a 

Society  of  Nations,  presented  May  9,   1919,  to   the  President  of 

the  Peace  Conference  at  Paris  by  the  German  Delegation  ^° 

C.    The  Permanent  Court  of  International  Justice 
Article  14 

The  Court  of  International  Justice  shall  be  constituted  by  the  Con- 
gress of  States,  for  a  period  of  nine  years,  as  follows : 

Each  State  proposes  at  least  one  and  at  most  four  persons  fitted 
and  inclined  to  exercise  the  functions  of  judge. 

At  least  one  of  the  persons  proposed  shall  not  be  a  ressortissant  of 
the  proposing  State. 

From  the  general  list  of  proposals  each  State  designates  15  persons; 
the  15  persons  who  receive  the  greatest  number  of  votes  are  chosen  as 
judges. 

The  judges,  in  case  of  vacancy,  are  replaced  by  those  persons  who 
received  the  greatest  number  of  votes  after  the  15  persons  elected,  and 
in  the  order  of  the  number  of  votes  received. 


^°  Translation.     For  the  French  text,  see  Memorandum  of  the  Secretariat  of 
the  League  of  Nations,  Annexes  Nos.  1-4,  p.  6. 


201 

Article  15 

The  award  is  rendered  by  a  tribunal  of  three  members,  one  of 
whom  is  chosen  by  each  of  the  parties.  The  President  is  named  by  all 
the  members  of  the  Court,  in  case  the  parties  can  not  reach  an  agree- 
ment as  to  appointing  him. 

Annexes  A  and  B  to  the  Note  of  June  23,  1919,  of  the  Austrian  Delega- 
tion to  the  Peace  Conference  at  Paris,  relative 
to  the  Society  of  Nations  " 

Annex  A,  Article  13 

The  International  Tribunal  is  composed  of  fifteen  judges  and  of 
eight  deputy  judges  elected  in  plenary  session  of  the  Members  of  the 
League.  Those  are  considered  as  being  elected  who  have  obtained  the 
largest  number  of  votes.  No  State  can  have  more  than  one  member. 
The  Tribunal  reaches  its  decisions  in  Commissions  of  nine  members, 
each  of  the  parties  challenging  three. 

A  Commission  of  the  Tribunal  of  three  members  shall  decide  the 
preliminary  question  as  to  whether  the  objection  regarding  vital  in- 
terests is  well  founded  or  not.  This  Commission  shall  be  formed  by 
the  parties  each  challenging  six  members. 

In  case  the  Commission  decides  that  the  dispute  affects  the  vital 
interests  of  one  of  the  parties,  the  case  shall  pass  before  the  Court  of 
Arbitration. 

The  Court  of  Arbitration  is  formed  on  the  model  of  the  Conven- 
tion of  1907  for  the  composition  of  the  Court  at  The  Hague.  In 
any  case  the  decisions  shall  be  taken  by  a  commission  of  five  mem- 
bers, the  parties  each  having  the  right  to  exclude  the  ressortissants  of 

states.    If,  in  the  course  of  one  month,  the  parties  can  not  come  to 

an  agreement  upon  the  election  of  a  president,  the  latter  shall  be 
elected  by  a  permanent  commission  of  nineteen  members,  to  be  elected 
at  the  opening  of  each  session,  and  of  whom  each  party  shall  challenge 
eight  members. 

The  decisions  of  the  International  Tribunal  and  of  the  Court  of 
Arbitration  are  definitive.  They  bind  the  parties  to  execute  them  in 
good  faith  and  oblige  the  Members  of  the  League  to  concur  in  their  exe- 
cution by  virtue  of  the  provisions  of  the  Covenant. 


^^  Translation.     For  the  Frencli   text,  see  Memorandum  of  the  Secretariat  of 
the  League  of  Nations,  Annexes  Nos.  1-4,  pp.  10,  11. 


202 


Annex  B 


All  disputes  susceptible  of  a  solution  according  to  general  principles, 
will  be  submitted  for  a  judicial  decision.  But  this  decision  may  be 
either  a  solution  similar  to  those  arrived  at  by  national  tribunals,  a 
decision  of  a  standing  tribunal,  created  by  the  will  of  the  League  of 
Nations  by  means  of  the  election  of  persons  who  enjoy  the  confidence 
of  the  majority  of  states — or  a  decision  of  an  arbitral  character  rendered 
by  an  arbitral  Court  set  up  by  the  parties  to  the  dispute.  Generally 
speaking  the  first  method  seems  preferable.  This  course  is  indicated 
with  specially  forcil)le  logic  by  the  United  States  of  America,  where 
the  Society  for  the  Judicial  Settlement  of  International  Disputes  has, 
since  1910,  shown  very  great  activity  in  support  of  the  establishment 
of  a  permanent  tribunal  analogous  to  their  Supreme  Court.  All  the 
delicate  matters  which  are  the  unavoidable  consequence  of  the  diffi- 
culty of  constituting  an  arbitral  tribunal  would  be  avoided.  This 
permanent  tribunal  would  be  able  to  create  a  solid  basis  for  the 
law  of  nations  and  thus  give  the  parties  to  the  dispute  the  assurance 
that  the  decision  would  be  in  conformity  with  the  principles  of  law. 
The  principal  advantage  of  such  a  permanent  tribunal  would  be  to 
offer  as  far  as  possible  in  human  affairs  an  almost  absolute  guarantee 
for  the  impartiality  of  its  verdicts.  This  guarantee  will  be  based  on 
the  following  rules: — 

(1)  The  judges  will  be  elected  for  a  number  of  years  fixed  in  ad- 
vance, not  for  a  special  case,  so  that  their  opinion  on  the  particular 
case  shall  not  be  known  beforehand. 

(2)  Only  persons  enjoying  the  full  confidence  of  the  majority  of 
the  States  which  have  instituted  the  tribunal  can  act  as  judges; 

(3)  The  ressortissants  of  the  parties  to  the  dispute  will  be  excluded 
from  rendering  decisions  in  special  cases; 

(4)  Each  party  will  be  entitled  to  eliminate  three  judges  from 
among  the  fifteen  who  compose  the  tribunal  without  being  obliged  to 
cite  a  reason  for  this  elimination. 

However  suitable  a  similar  tribunal  might  be  in  the  majority  of 
cases  of  a  legal  nature,  one  cannot  deny  that  for  certain  categories 
of  disputes  States  will  have  confidence  only  in  tribunals  formed  for 
each  special  case,  in  the  composition  of  which  they  have  had  some 
influence.  Tliese  are  cases  in  which  the  vital  interests  of  one  of  the  par- 
ties are  at  stake.  For  these  cases  our  proposal  grants  to  each  party  the 
right  to  demand  an  arbitral  court  instead  of  the  permanent  tribunal. 

Evidently  it  can  not  suffice  that  a  party  should  make  an  objection 
in  this  sense  in  order  to  dispossess  the  permanent  tribunal  of  jurisdic- 


203 

tion.  To  obtain  this  result,  this  objection  will  have  to  be  recognized  as 
being  well  founded  by  a  Commission  whose  impartiality  can  not  be  sus- 
pected. With  this  object,  the  project  proposes  to  create  a  commission, 
for  the  election  of  which  each  party  shall  challenge  6  members  of  the 
whole  15.  In  case  this  commission  decides  that  the  dispute  affects  the 
vital  interest  of  one  of  the  parties,  the  case  will  pass  before  the  Court  of 
Arbitration.  In  the  contrary  case,  it  shall  remain  submitted  to  the  In- 
ternational Tribunal. 

The  Court  of  Arbitration  shall  be  composed  upon  the  model  of 
the  Hague  Court  of  1907.  It  shall  decide  by  a  commission  of  five  mem- 
bers. In  order  to  better  insure  the  impartialit}-  of  these  commis- 
sions, they  shall  be  composed  in  a  manner  which  differs  slightly 
from  that  provided  for  the  Court  of  Arbitration  of  The  Hague. 

In  order  to  judge  the  individual  case,  each  of  the  litigant  parties 
shall  name  two  members  who  shall  not  be  its  ressortissants.  The  ad- 
verse party  shall  have  the  right  of  excluding  the  ressortissants  of  a 
definite  number  of  States.  The  number  of  these  exclusions  shall  differ 
according  as  the  number  of  States  having  established  the  Court  shall 
be  larger  or  smaller.  Special  attention  shall  be  given  to  the  choice  of 
the  president.  At  the  opening  of  each  session  a  permanent  commission 
of  19  members  shall  be  elected.  For  the  election  of  the  president  each 
party  shall  eliminate  8  members  of  this  Commission,  so  that  there  will 
remain  3  members  who  will  choose  the  president  from  among  all  the 
members  of  the  Court. 


Recent  Projects,  not  submitted  to  the  Peace  Conference  at  Paris 

Draft    Convention    for   an    International   Juridical    Organization,    pre- 
pared by  the  three  committees  appointed  by  the  Governments  of 
Denmark,  Norway  and  Sweden,  respectively,  February,  1919^^ 

II. — Court  of  International  Justice 

10.  The  organization  of  the  Court 
shall  as  far  as  possible  be  based 
upon  the  principle  of  the  legal 
equality  of  the  States. 

11.  The  Court  of  Justice  is  com- 


^~  Translation.  For  original  Frencli  text,  see  Avant-projet  de  couvcntion  rela- 
tive a  une  organisation  juridique  internationale  elahore  par  les  trois  comitcs  nommes 
par  les  Gouvernements  du  Suede,  du  Danemark  et  de  Norvege,  avec  iin  expose  des 
motifs  extrait  du  Rapport  du  Comite  suedois   (Stockholm,  1919),  p.  2. 


204 


posed  of  15  members  chosen  from 
among  persons  enjoying  the  high- 
est moral  reputation  and  all  of 
whom  must  fulfil  the  conditions  re- 
quired in  their  respective  countries 
for  admission  to  the  high  magis- 
tracy, or  be  jurisconsults  of  a 
known  competence  in  matters  of 
international  law.  The  members 
are  chosen  without  regard  to  their 
nationality;  however,  more  than 
two  members  who  are  nationals  of 
one  and  the  same  State  shall  not 
sit  at  the  same  time. 

12.  The  members  of  the  Court  of 
Justice  are  elected  by  an  Electoral 
Assembly  in  which  each  State  is 
represented  by  the  first  in  numeri- 
cal order  of  its  judges  in  the  Per- 
manent Court  of  Arbitration  at  The 
Hague,  or  if  this  member  is  pre- 
vented, by  the  next  member  who 
is  not  prevented. 

The  members  are  appointed  for 
life. 


Danish  alternative :  27  members. 


Alternative:  however,  all  the 
members  must  belong  to  different 
States. 


Alternative:  The  elections  take 
place,  with  the  exception  men- 
tioned in  the  third  paragraph,  for 
a  period  of  9  years.  The  mandates 
may  be  renewed.  The  members  of 
the  Court  of  Justice  complete  the 
cases  which  have  been  submitted 
to  them,  even  in  case  the  period  for 
which  they  were  named  judges  may 
have  expired. 

After  the  first  election  the  judges 
are  distributed  by  drawing  of  lots 
in  three  equal  groups  having  a 
varying  duration  of  mandates,  in 
such  a  way  that  the  future  elections 
be  concerned  in  every  case  only 
with  the  renewal  of  one-third  of 
the  members  of  the  Court. 


205 

13.  The  election  is  based  upon  a 
list  comprising  all  the  candidates 
proposed  by  the  Governments, 
Each  Government  presents  at  most 
as  many  candidates  as  there  are 
places  to  be  iilled  in  each  particu- 
lar case,  and  at  least  one-half  of 
this  number.  No  independent  pro- 
posal may  be  formulated  within 
the  Electoral  Assembly. 

14.  The  Electoral  Assembly  meets 
at  The  Hague  for  the  first  time  on 
June  1,  .  .  .  ,  or  upon  the  follow- 
ing week  day  and  thereafter  at  the 

same  time  every  6  years.  Before  Alternative :  every  3  years, 
the  meeting  of  the  Electoral  As- 
sembly the  International  Bureau  of 
the  Administrative  Council  of  the 
present  Permanent  Court  of  Arbi- 
tration convokes  in  due  time  the 
first  member  of  each  State  in  nu- 
merical order. 

15.  The  Electoral  Assembly  elects 
its  own  President. 

16.  Before    the    election    of    the 
members  of  the  Court,  a  dclibera-    . 
tion  must  take  place  among  all  the 
electors  present. 

Only  the  electors  present  have 
the  right  of  vote. 

The  election  takes  place  for  one 
member  at  a  time. 

In  order  to  be  elected  a  member 
of  the  Court,  the  candidate  must 
have  obtained  an  absolute  majority 
of  the  votes  cast.  If  after  two  bal- 
lots no  candidate  has  obtained  an 
absolute  majority,  the  election 
shall  take  place  in  the  third  ballot 
by  a  simple  majority. 

17.  Beside   the  members   of   the 


206 


International  Court  of  Justice  there 
shall  likewise  be  15  deputy  mem- 
bers elected  for  a  period  of  6  years. 
They  shall  be  elected  in  the  same 
manner  as  the  ordinary  members. 
At  the  time  of  their  election  the 
Electoral  Assembly  likewise  fixes 
the  order  of  the  deputy  members. 
When  an  ordinary  member  ceases 
to  be  a  member  of  the  Court,  he  is 
replaced,  according  to  the  fixed  or- 
der, by  the  first  deputy,  who  takes 
the  place  of  the  departing  member 
for  life. 

When  in  other  cases  the  Court 
is  obliged  to  call  deputies,  they  en- 
ter into  function  in  the  order  fixed 
at  the  time  of  their  election  and  re- 
main in  office  as  long  as  necessary. 

If  as  a  result  of  the  rule  prescrib- 
ing that  more  than  2  members  be- 
longing to  the  same  State  can  not 
sit  in  the  Court,  a  deputy  is  pre- 
vented, his  place  shall  be  taken  by 
the  person  who  follows  him  imme- 
diately in  the  list  of  deputies. 


Alternative :  whose  mandates  ex- 
pire at  the  time  of  the  meeting  of 
the  Electoral  Assembly. 


Alternative:    for   the   remainder 
of  the  duration  of  the  mandate. 


Alternative:  than  one  member. 


A  Project  for  a  Court  of  International  Justice,  prepared  by  the  Com- 
mittee appointed  by  the  Danish  Government,  August,  1919^^ 

Article  1     • 

The  Court  is  composed  of  21  members  chosen  from  among  persons 
enjoying  the  highest  moral  reputation  and  all  of  whom  must  fulfil  the 
conditions  required  in  their  respective  countries  for  admission  to  the 
high  magistracy,  or  be  jurisconsults  of  a  known  competence  in  matters 
of  international  law.  The  members  are  elected  without  regard  to  their 
nationality;  however,  more  than  two  members  who  are  nationals  of 
one  and  the  same  Power  shall  not  sit  at  the  same  time. 


"  Translation  of  the  official   French  text  published  by  the  Secretariat  of  the 
League  of  Nations. 


207 

Article  2 

The  members  of  the  Court  are  elected  by  the  Assembly.  The 
elections  take  place  every  three  years. 

Article  3 

The  election  is  based  upon  a  list  comprising  the  candidates  pro- 
posed by  the  Governments.  Each  Government  presents  at  most  as  many 
candidates  as  there  arc  places  to  be  filled  in  each  particular  case,  and  at 
least  one-half  of  this  number.  At  most  one-third  of  the  candidates 
proposed  may  belong  to  the  Power  in  question. 

No  independent  proposal  may  be  formulated  within  the  Assembly. 

Article  4 
A  general  deliberation  takes  place  before  the  election. 

Article  5 

In  order  to  be  elected  a  member  of  the  Court,  the  candidate  must 
have  obtained  an  absolute  majority  of  the  votes  cast. 

If  after  three  ballots  there  still  remain  mandates  to  be  distributed, 
the  voting  continues  by  submitting  each  undistributed  mandate  to  a 
special  vote.  If  in  this  case,  after  two  ballots,  no  candidate  has  ob- 
tained an  absolute  majority,  the  election  is  decided  by  a  third  ballot 
between  the  two  candidates  who,  in  the  second  ballot,  obtained  the 
plurality  of  the  votes. 

Article  6 

There  shall  likewise  be  15  deputy  members  who  are  elected  in  the 
same  manner  as  the  ordinary  members  of  the  Court  and  for  the  same 
period.  At  the  time  of  their  election  the  order  of  the  deputy  members 
is  likewise  fixed. 

If  as  a  result  of  the  rule  prescribing  that  more  than  two  members 
belonging  to  the  same  Power  can  not  sit  in  the  Court,  a  deputy  member 
is  prevented,  his  place  shall  be  taken  by  the  person  who  follows  him 
immediately  in  the  order  of  the  deputies. 

Article  7 

The  election  takes  place  for  a  period  of  9  years.  A  judge  whose 
period  may  have  expired,  participates  none  the  less  in  the  settlement 
of  a  case,  the  examination  of  which  he  has  begun. 

When  a  judge  has  died  or  has  for  any  other  reason  ceased  to  be  a 
member  of  the  Court,  he  is  replaced  by  the  deputy,  who  takes  his  place 


208 

for  the  remainder  of  the  duration  of  the  mandate  of  the  departing 
member. 

After  the  first  election  the  judges  are  distributed,  by  drawing  of  lots, 
in  three  equal  groups  having  a  varying  duration  of  mandates,  in  such 
a  way  that  the  future  elections  be  concerned  in  every  case  only  with 
the  renewal  of  one-third  of  the  members  of  the  Court. 

The  mandates  may  be  renewed. 

Report  prepared  by  the  Committee  appointed  by  the  Norwegian  Gov- 
ernment for  investigating  certain  questions  relating 
to  the  Society  of  Nations,  August,  1919^' 

Art.  1. — The  Court  of  Interna- 
tional Justice  is  composed  of  21  Mr.  Lange:  15  members. 
members  chosen  from  among  per- 
sons enjoying  the  highest  moral 
reputation  and  all  of  whom  must 
fulfil  the  conditions  required  in 
their  respective  countries  for  ad- 
mission to  the  high  magistracy,  or 
be  jurisconsults  of  a  known  com- 
petence in  matters  of  international 
law.  The  persons  are  chosen  with- 
out regard  to  their  nationality; 
however,  more  than  two  judges 
who  are  ressortissants  of  one  and 
the  same  Power  shall  not  sit  at  the 
same  time. 

Art.  2. — The  members  of  the 
Court  are  elected  by  the  Assellibly 
of  the  League-  of  Nations. 

The  elections  take  place  every  3 
years. 

Art.  3. — The  election  is  based 
upon  a  list  comprising  all  the  can- 
didates proposed  by  the  Govern- 
inents.  Each  Government  presents 
so  many  candidates  as   there  are 


^^  Translation  of  the  official   French   text  published  by  the   Secretariat  of  the 
League  of  Nations. 


209 


mandates  to  be  conferred  within 
the  L.oLirt  in  each  particular  case. 

A  Power  can  designate  at  most, 
at  the  first  election,  only  one-third 
of  the  candidates  whom  it  pro- 
poses, from  among  its  own  ressor- 
tissants;  and,  at  the  subsequent 
elections,  three  at  most. 

No  independent  proposal  may  be 
formulated  within  the  Assembly. 

Art.  4, — Before  the  election,  a 
general  deliberation  must  take 
place. 

Art.  5. — In  order  to  be  declared 
elected  a  member  of  the  Court,  the 
candidate  must  have  obtained  an 
absolute  majority  of  the  votes. 

If  after  three  ballots  there  still 
remain  mandates  to  be  conferred, 
the  balloting  is  continued  in  the 
following  manner:  the  election 
takes  place  for  one  mandate  at  a 
time.  If  after  two  ballots  for  one 
of  these  mandates,  no  candidate 
has  obtained  an  absolute  majority, 
the  election  shall  take  place  in  a 
third  ballot  between  the  two  candi- 
dates having  obtained  the  greatest 
number  of  votes  in  the  second  bal- 
lot. 

Art.  6. — Furthermore,  there  shall 
be  15  deputy  judges.  They  are 
elected  in  the  same  manner  and 
for  the  same  period  as  the  mem- 
bers of  the  Court.  Compare  Arti- 
cles 3  and  5.  The  order  of  the 
deputies  is  fixed  at  the  time  of 
their  election. 

If  as  a  result  of  the  rule  pre- 
scribing that  more  than  2  ressortis- 


Messrs.  Grieg  and  Lange:  A 
Power  can  designate  at  most  only 
one-third  of  the  candidates  whom 
it  proposes,  from  among  its  own 
ressortissants. 


Messrs.  Grieg  and  Langc:  Fur- 
thermore, there  shall  be  15  deputy 
judges  elected  for  3  years  accord- 
ing to  the  rules  fixed  for  the  elec- 
tion of  the  members  of  the  Court. 


210 


sants  of  one  and  the  same  Power 
can  not  sit  in  the  Court,  a  deputy 
is  prevented,  his  place  is  taken  hy 
the  person  who  follows  him  imme- 
diately in  the  list  of  deputies. 

Art.  7. — The  elections  take  place 
for  a  period  of  9  years.  The  mem- 
bers complete  the  cases  which  have 
been  submitted  to  them,  even  if  the 
period  for  which  they  have  been 
elected  has  expired. 

When  a  judge  dies  or  ceases  his 
functions  for  other  reasons,  he  is 
replaced  by  the  first  deputy,  who 
takes  his  place  until  the  next  elec- 
tion. 

At  the  time  of  the  first  election 
the  judges  are  distributed,  by 
drawing  of  lots,  in  three  equal 
groups,  having  a  varying  duration 
of  mandates,  in  such  a  way  that 
the  future  elections  be  concerned 
in  every  case  only  with  one-third 
of  the  members  of  the  Court. 

The  members  of  the  Court  are 
eligible  for  reelection. 


Messrs.  Grieg  and  Lange:  The 
members  of  the  Court  are  named 
for  life. 

When  a  judge  .  .  .,  the  next 
election. 


Mr.  Lange:  A  member  of  the 
Court  may  be  removed  whenever 
he  must  be  considered  as  being  in- 
capable of  fulfilling  his  functions. 
A  decision  on  this  subject  is  taken 
either  by  the  Court  or  by  the  As- 
sembly. If  it  is  taken  by  the  Court, 
it  must  secure  a  unanimous  vote,  if 
it  is  taken  by  the  Assembly,  three- 
fourths  of  the  votes  of  the  Powers 
represented. 


Swedish  Project  for  a  Convention  relating  to  a  Permanent  Court  of 
International  Justice,  August,  1919^'° 


The  Court  of  International  Justice  provided  for  by  Article  14  of 
the  Covenant  of  the  League  of  Nations  is  composed  of  15  members 
chosen  from  among  persons  enjojang  the  highest  moral  reputation  and 
all  of  whom  shall  fulfil  the  conditions  required  in  their  respective 
countries  for  the  admission  to  Ihe  high  magistracy,  or  be  jurisconsults 
of  a  known  competence  in  matters  of  international  law.    The  members 


^•^  Translation    of    official    French    text    published    by    the    Secretariat    of    the 
League  of  Nations. 


211 

are  chosen  without  regard  to  their  nationality;  however,  more  than 
two  judges  who  are   nationals  of  one   and   the  same  State   shall  not 

belong  to  the  court. 

2 

The  members  of  the  Court  of  Justice  are  elected  by  an  Electoral 
Assembly  in  which  each  member  of  the  League  of  Nations  is  repre- 
sented by  the  first  in  numerical  order  of  its  judges  in  the  Permanent 
Court  of  Arbitration  at  The  Hague,  or,  in  his  absence,  by  the  next  mem- 
ber who  is  not  prevented. 

The  judges  to  the  Court  are  appointed  for  life. 


The  right  of  nomination  belongs  to  the  Government  of  each  of  the 
States  which  are  members  of  the  League  of  Nations.  Each  Govern- 
ment presents  at  most  so  many  candidates  as  there  are  mandates  to 
be  provided  for  and  at  least  one-half  of  this  number.  No  nomination 
of  candidates  shall  be  admitted  in  the  Electoral  Assembly. 

4 

The  Electoral  Assembly  meets  at  The  Hague  for  the  first  time  on 
.  .  .  and  thereafter  at  the  same  time  every  six  years.  The  Inter- 
national Bureau  of  the  Administrative  Council  of  the  present  Perma- 
nent Court  of  Arbitration  advises  in  due  time  the  first  members  of  the 
different  States  in  numerical  order  of  the  meeting  of  the  Assembly. 

5 

The  Electoral  Assembly  elects  its  own  President. 

6 

Before  the  election  of  the  members  of  the  Court  a  deliberation 
shall  take  place  among  all  the  electors  present. 

The  electors  present  only  have  the  right  of  vote. 

The  election  takes  place  for  one  member  at  a  time. 

In  order  to  be  elected  a  member  of  the  Court,  the  candidate  must 
have  obtained  an  absolute  majority  of  the  votes  cast.  If  after  two 
ballots  no  candidate  has  obtained  an  absolute  majority,  the  election 
shall  take  place  in  the  third  ballot  by  a  simple  majority  of  the  votes. 

7 

Beside  the  members  of  the  International  Court  of  Justice  there 
shall  likewise  be  15  deputy  members,  elected  for  a  period  of  6  years. 


212 

They  shall  be  elected  under  the  same  conditions  as  the  ordinary  mem- 
bers. At  the  time  of  their  election,  the  Electoral  Assembly  shall  like- 
wise fix  a  numerical  order  for  the  deputy  members.  When  an  ordinary 
member  ceases  to  belong  to  the  Court,  the  first  in  numerical  order  of 
the  deputy  members  replaces  him  in  his  functions  for  life. 

In  any  other  case  in  which  the  Court  must  call  upon  deputies  to 
sit,  they  enter  upon  their  functions  in  the  order  fixed  at  the  time  of 
their  election  and  remain  in  office  as  long  as  necessary. 

If  by  virtue  of  the  provision  prescribing  that  not  more  than  two 
members  who  are  nationals  of  one  and  the  same  State  shall  belong  to 
the  Court,  a  deputy  is  prevented,  he  shall  be  replaced  by  the  person 
who  follows  him  immediately  in  the  list  of  deputies. 

Netherland  Project  relating   to   the  Establishment   of   the  Permanent 

Court  of  International  Justice  provided  for  by  Article  li^  of  the 

Covenant  of  the  League  of  Nations,  end  of  1919^^ 

Title  1. — The  Organization  of  the  Permanent  Court  of  International 

Justice 

Article  1 

The  Permanent  Court  of  International  Justice  provided  for  by 
Article  14  of  the  Covenant  of  the  League  of  Nations  is  composed  of 
permanent  and  professional  judges,  in  order  to  assure  the  continuity 
of  international  jurisprudence. 

Article  2 

(1)  The  Court  is  composed  of  7  judges  and  5  deputy  judges  of 
different  nationality. 

(2)  The  judges  and  deputy  judges  are  taken  from  among  persons 
enjoying  the  highest  moral  reputation  and  all  of  whom  must  fulfil  the 
conditions  required  in  their  respective  countries  for  admission  to  the 
high  magistracy,  either  administrative  or  judicial,  or  be  jurisconsults 
of  a  known  competence  in  matters  of  international  law. 

(3)  They  are  named  by  the  Administrative  Council  mentioned  in 
Article  17,  and  by  means  of  national  lists  of  recommendation,  in  the 
manner  foreseen  in  Articles  3  and  4. 


1*^  Translation    of    official    French    text    published    by    the    Secretariat    of    the 
League  of  Nations. 


213 

Article  3 

(1)  The  national  lists  of  recommendation  are  composed  on  the  one 
hand,  by  the  colleges  which  in  each  country  are  charged  with  the  high- 
est jurisdiction,  cither  administrative  or  judicial,  and  on  the  other 
hand,  by  the  faculties  of  law  of  the  national  universities,  with  the 
reservation  of  the  right  of  the  Governinents,  as  mentioned  below,  to 
complete  the  general  list. 

(2)  The  Secretariat  of  the  League  of  Nations  fixes  the  day  of  the 
election. 

(3)  At  least  four  months  before  this  day  the  Secretariat  invites 
by  telegram  the  colleges  and  faculties  mentioned  in  the  first  para- 
graph to  present  to  it  within  a  period  of  two  months  a  recommenda- 
tion of  two  persons  at  the  most  answering  the  conditions  of  Article  2, 
paragraph  2.  The  invitations  may  be  addressed  through  the  Govern- 
ments. The  recommendations  received  after  the  expiration  of  the  said 
period  of  two  months  are  void. 

(4)  At  least  six  weeks  before  the  day  of  the  election  the  Secretariat 
publishes  in  a  general  list  the  recommendations  in  alphabetical  order, 
rnentioning  the  number  of  recommendations  acquired  by  each  of  the 
candidates  but  without  mentioning  the  recommenders. 

(5)  Within  the  three  weeks  which  follow  this  publication,  each 
Gover^nment  may  modify  the  general  list,  on  the  one  hand,  by  the  ad- 
dition of  the  names  of  two  new  candidates  answering  the  conditions  of 
Article  2,  paragraph  2,  on  the  other  hand,  by  augmenting  with  another 
recommendation  the  number  of  recommendations  of  two  persons  whose 
names  are  already  found  upon  the  list. 

(6)  At  least  three  weeks  before  the  day  of  the  election  the  Secre- 
tariat publishes  the  general  list  modified  in  this  way,  while  observing 
the  provisions  of  paragraph  4. 

(7)  The  Secretariat  convokes  the  Administrative  Council  to  the 
election. 

Article  4 

(1)  The  election  is  made  exclusivelj'^  from  among  the  persons 
found  on  the  last  general  list,  provided  with  at  least  three  recom- 
mendations. 

(2)  At  the  election,  the  representative  of disposes  of 

votes;  etc. 

(3)  The  election  is  made  by  a  list  ballot.  Those  persons  who  ac- 
quire the  largest  number  of  votes  are  considered  as  elected,  provided 
that  this  number  is  not  less  than  one-fourth  of  the  votes  cast.     The 


214 

seven  persons  elected  by  the  largest  number  of  votes  are  judges;  the 
next  five  persons  are  deputy  judges.  If  several  persons  who  have  been 
elected  acquire  the  same  number  of  votes  and  the  number  of  places 
is  less  than  that  of  the  persons  elected,  a  decision  is  reached  b}^  lot. 
If  there  are  among  those  elected,  persons  of  the  same  nationality,  the 
person  who  has  acquired  the  largest  number  of  votes  is  considered  as 
elected;  if  the  number  of  votes  is  equal,  the  decision  is  reached  by  lot. 
The  same  rule  applies  in  case  there  should  be  two  persons  elected 
having  the  number  of  votes  required  for  the  last  place  as  judge. 

(4)    The  Secretariat  publishes  the  result  of  the  election  as  soon 

as  possible. 

Article  5 

(1)  The  judges  and  deputy  judges  are  named  for  a  period  of  12 
years.     Their  mandate  may  be  renewed. 

(2)  In  case  of  death  or  resignation  of  a  judge  or  deputy  judge 
provision  is  made  for  filling  his  place  in  accordance  with  the  manner 
fixed  for  his  appointment.  In  this  case  the  appointment  is  made  for  a 
fresh  period  of  12  years. 

(3)  During  the  period  of  their  functions  they  may  be  recalled  or 
suspended  only  by  virtue  of  a  decision  of  the  Court  itself. 

Article  17 

(1)  The  Permanent  Administrative  Council,  composed  of  repre- 
sentatives of  the  members  of  the  League  of  Nations  at ^''  and  of  the 

Minister  of  Foreign  Affairs  of ,^^  who  fulfills  the  functions  of 

President,  has  charge  of  the  administration  and  the  control  of  the  In- 
ternational Bureau. 


^^  Seat  of  the  Court. 

^^  Country  in  which  the  Court  sits. 


215 

Project  of  the  Hague  Conference  of  February  16-27,  1920,  concerning 

the  cstalAishment  of  the  Permanent  Court  of  International  Justice 

provided  for  by  Article  l^i  of  the  Covenant  of  the  League  of 

Nations,  drafted  by  official  representatives  of  Denmark, 

Norway,    Holland,    Sweden    and    Switzerland^^ 

Chapter  II. — Organization  of  the  Court 

Article  4 

1.  The  Court  shall  be  composed 
of  fifteen  judges  and  six  deputy 
judges,  selected  from  persons  of 
the  highest  character,  who  shall 
possess  the  qualifications  required, 
in  their  own  countries,  for  eleva- 
tion to  high  legal  office  whether 
administrative  or  juridical,  or 
shall  be  jurisconsults  of  recog- 
nized authority  in  international 
law. 

2.  Not  more  than  two  judges  of 
the  same  nationality  may  belong 
to  the  Court. 


Danish  Delegation: 

Only  one  judge  of  any  one  na- 
tionality may  belong  to  the  Court. 


Article  5 

1.  The  judges  and  deputy  judges 
shall  be  appointed  by  the  Assem- 
bly of  the  League  of  Nations. 

Article  6 

1.  Whenever  one  or  more  judges 
are  to  be  elected,  the  Secretariat 
of  the  League  of  Nations  shall  re- 
quest the  Members  to  send  it  a  list 
of  candidates  within  three  months. 
Any  nominations  received  after  the 
expiration  of  this  time  shall  not  be 
considered. 


^^  Conference  de  la  Haye  pour  I'elaboration  d'un  projet  relatif  a  Vetablissement 
de  la  Cour  Permanente  de  Justice  Internationale,  prevue  a  I'article  IJf  du  pacte  de 
la  Soclete  des  Nations,  lG-27  fevrier  1920  (The.  Hague,  1920),  p.  5. 


216 


2.  Each  Member  may  nominate 
a  number  of  candidates  equal  to 
the  number  of  vacancies  and  not 
less  than  half  the  number;  in  no 
case  less  than  three. 

Not  more  than  one-third  of  the 
candidates  nominated  may  be  sub- 
jects of  the  nominating  State. 

3.  Before  submitting  their  nomi- 
nations, Members  shall  consult 
their  respective  High  Courts  of 
Justice  and  the  legal  faculties  of 
their  Universities. 

4.  The  Secretariat  shall  have  au- 
thority to  request  Members  to 
amend  their  nominations,  before 
the  expiration  of  the  period  men- 
tioned in  paragraph  1,  should  such 
nominations  not  appear  to  con- 
form to  the  conditions  of  para- 
graph 3. 

5.  The  Secretariat  shall  publish 
a  list  stating  the  nominations  in 
alphabetical  order.  This  list  shall 
show  the  number  of  nominations 
obtained  by  each  candidate,  but 
shall  not  show  the  names  of  the 
nominating  Members. 

6.  At  the  meeting  of  the  electoral 
Assembly,  there  shall  be  a  discus- 
sion. After  this  discussion  each 
voter  shall  vote  for  a  number  of 
candidates  equal  to  the  number  of 
vacancies,  llie  candidates  to  be 
chosen  from  the  list  referred  to  in 
paragraph  5.  Votes  shall  be  re- 
corded in  writing  and  by  secret 
ballot. 

7.  If  several  judges  are  to  be  ap- 
pointed at  one  time,  election  shall 
be  by  scrutin  de  liste.    The  candi- 


217 


dates  obtaining  an  absolute  major- 
ity shall  be  elected.  Should,  after 
three  ballots,  any  vacancies  remain 
unfilled,  the  following  method  of 
voting  shall  be  adopted:  one  va- 
cancy shall  be  voted  for  at  a  time. 
If  after  two  ballots,  no  candidate 
shall  have  obtained  an  absolute 
majority,  a  third  ballot  shall  be 
taken  to  decide  between  the  two 
candidates  who  obtained  most  sup- 
port at  the  second  ballot.  Should 
several  candidates  obtain  the  same 
number  of  votes  or  should  the 
number  of  vacancies  be  less  than 
the  number  of  candidates  elected, 
the  eldest  candidates  shall  be  con- 
sidered elected.  Should  more  than 
two  citizens  of  the  same  country  be 
among  those  elected,  the  two  ob- 
taining the  largest  number  of  votes 
shall  be  considered  as  elected;  if 
an  equal  number  of  votes  be  ob- 
tained, the  eldest  candidates  shall 
be  considered  as  elected. 

8.  If  onlj'^  a  single  judge  is  to  be 
elected,  the  candidate  receiving  an 
absolute  majority  of  votes  shall  be 
elected. 

Should  no  candidate  obtain  an 
absolute  majority  after  two  vot- 
ings a  third  vote  shall  be  taken  to 
decide  between  the  two  candidates 
obtaining  most  support  at  the  sec- 
ond vote.  In  case  of  equality,  the 
eldest  candidate  shall  be  consid- 
ered elected. 

9.  The  Secretariat  shall  publish 
the  result  of  the  election  as  soon  as 
possible. 


218 


Article  7 

1.  Deputy  judges  shall  be  elected 
from  the  list  in  the  manner  pro- 
vided I  or  in  Article  6. 

2.  If  both  judges  and  deputy 
judges  are  to  be  elected  at  the  same 
time,  the  election  of  judges  shall 
take  place  first. 

Article  8 

In  case  of  the  retirement,  resig- 
nation, removal  or  death  of  a  judge 
or  deputy  judge,  a  new  election 
shall  take  place  within  twelve 
months. 

Article  9 

1.  Judges  shall  be  appointed  for 
a  term  of  nine  years;  deputy  judges 
for  six  years. 

2.  They  may  be  reappointed. 

3.  Judges  or  deputy  judges  shall 
complete  the  hearing  and  decision 
of  cases  of  which  they  may  have 
cognizance,  even  though  the  period 
for  which  they  have  been  elected 
has  expired. 


Sw^edish  and  Netherland 
Delegations  : 

Judges    shall   be    appointed   for 
life. 


ROOT-PHILLIMORE  PLAN  FOR  ORGANIZATION   AND   JURISDIC- 
TION OF  THE  PERMANENT  COURT  OF 
INTERNATIONAL  JUSTICE '' 

1.    The  Permanent  Court  of  International  Justice  provided  for  by 
Article  14  of  the  Covenant  of  the  League  of  Nations  shall  consist  of 


2"  The  Root-Phillimore  Plan  was  laid  before  the  Advisory  Committee  in  two 
sections:  the  first  part,  Articles  1  to  17,  inclusive,  on  June  30,  and  the  second  part, 
Articles  18  to  30,  inclusive,  on  July  1. 

Article  29  originally  read:  "The  rest  of  the  subject  of  competency  is  covered 
by  the  article  drawn  by  the  President  and  Lord  Phillimore  and  amended  by  Mr. 
Ricci-Busatti." 

In  the  text  as  printed,  this  material  was  inserted  as  Articles  29,  30  and  31, 
with  the  result  that  Article  30  of  the  original  became  Article  32  of  the  Root- 
Phillimore  plan. 


219 

independent  judges  who  shall  he  chosen  regardless  of  their  nationality 
"and  who  shall  possess  the  qualifications  required,  in  their  own  coun- 
tries, for  elevation  to  high  legal  office  whether  administrative  or 
judicial,  or  shall  be  jurisconsults  of  recognized  authority  in  interna- 
tional law. 

2.  There  shall  be  eleven  judges  and  four  supplementary  judges 
who  shall  hold  office  for  a  term  of  nine  years  and  who  shall  be  elected 
by  the  Assembly  and  the  Council  of  the  Societ}^  of  Nations.  Each  of 
those  bodies  shall  vote  separately  and  the  votes  of  a  majority  of  the 
members  present  and  voting  in  each  body  shall  be  necessarj'  to  an 
election. 

3.  If,  after  the  first  vote  in  each  electoral  body,  it  shall  appear 
that  any  vacancies  in  the  Court  remain  unfilled,  a  second  vote  shall  be 
taken  in  like  manner  to  fill  such  vacancies;  and  separate  votes  shall 
be  taken  in  like  manner  until  all  the  existing  vacancies  are  filled. 

4.  For  the  purpose  of  reconciling  any  differences  which  may  arise 
between  the  two  electoral  bodies  in  regard  to  the  persons  to  be  elected, 
they  may  at  any  time  when  they  deem  it  suitable  appoint  a  committee 
composed  of  three  from  each  body  for  the  purpose  of  conferring  and 
recommending  the  conciliation  of  such  differences.  If  such  differences 
should  prove  ultimately  irreconcilable,  the  appointment  to  the  vacan- 
cies unfilled  shall  devolve  upon  the  judges  who  have  already  been 
agreed  upon. 

5.  The  supplementary  judges  shall  be  separately  elected  in  like 
manner. 

6.  A  list  of  persons  qualified  and  fit  to  exercise  the  judicial  office  shall 
be  laid  before  the  Assembly  and  the  Council  respectively  before  the 
time  of  election.  Such  list  shall  be  made  up  in  the  following  manner: 
At  least  three  months  before  the  time  of  election,  the  Secretary-General 
of  the  League  of  Nations  shall  apply  in  writing  to  the  members  of  the 
Permanent  Court  of  Arbitration  at  The  Hague  from  each  country 
which  shall  have  appointed  such  members,  requesting  the  members 
from  each  countr\%  acting  as  a  body,  to  propose  not  more  than  four 
names  of  persons  whom  they  deem  to  be  qualified  and  available  for 
judges. 

7.  All  of  the  persons  so  proposed  shall  form  the  list  to  be  laid 
before  and  considered  by  the  Assembly  and  Council  and  the  judges 
shall  be  elected  from  that  list.  In  the  event,  however,  of  the  Assembly 
and  Council  not  agreeing,  the  Committee  of  Conference  shall  be  at 
liberty  to  recommend  to  the  Assemblv  and  Council  a  person  outside 
the  list. 


220 

8.  The  members  of  the  Permanent  Court  of  Arbitration  in  each 
country  are  requested  to  consult  with  the  highest  judicial  officers,  the 
heads  of  universities  and  learned  societies,  to  the  end  that  the  nomi- 
nations made  may  be  of  persons  who  are  the  most  competent  and  ex- 
perienced and  of  the  highest  judicial  character  and  reputation. 

9.  Judges  or  supplementary  judges  shall  complete  the  hearing  of 
cases  of  which  they  have  cognizance  even  though  the  period  for  which 
they  have  been  elected  shall  have  expired. 

10.  In  case  any  judge  or  supplementary  judge  shall  become  in- 
capable or  unfit  for  the  performance  of  a  judicial  ofiice,  upon  the 
unanimous  representation  of  this  fact  by  the  court  to  the  Secretary 
General  the  place  of  the  judge  shall  become  vacant  and  notice  shall 
be  given  of  an  election  to  fill  the  vacancy  at  the  next  meeting  of  the 
Assembly  and  Council. 

11.  In  all  elections  of  judges  and  supplementary  judges  the  electors 
shall  be  under  honorable  obligation  to  take  into  account  the  existence 
of  the  necessary  qualifications  and  to  seek  so  far  as  practicable  to  have 
represented  in  the  Court  the  different  forms  of  civilization  and  juridical 
systems  which  exist  among  the  members  of  the  Society  of  Nations; 
but,  there  shall  be  but  one  member  of  the  Court  elected  from  any  one 
State. 

12.  The  Court  shall  elect  its  own  President  and  Vice-President.  It 
shall  also  appoint  its  registrar  or  may  designate  the  registrar  of  the 
Permanent  Court  of  Arbitration  to  be  its  registrar. 

13.  The  President  and  Vice-President  shall  be  elected  for  a  term 
of  three  years  and  shall  be  eligible  for  re-election. 

14.  A  judge  may  not  exercise  his  judicial  functions  in  an}'^  case  in 
which  he  has,  in  any  way  whatever,  taken  part  in  the  decision  of  a 
national  tribunal,  of  a  tribunal  of  arbitration,  or  of  a  commission  of 
inquiry,  or  has  figured  in  the  suit  as  counsel  or  advocate  for  one  of  the 
parties.  A  judge  cannot  act  as  agent  or  advocate  in  any  international 
cause  during  his  term  of  office. 

15.  Vacancies  in  the  office  of  judge  and  supplementary  judge  shall 
be  filled  as  in  the  case  of  original  appointments,  and  in  every  case  the 
appointment  shall  be  for  the  full  term  of  nine  years: 

16.  The  parties  cannot  challenge  a  judge  of  the  Permanent  Court 
of  International  Justice.  If,  for  a  specific  reason,  the  President  of  the 
Court  considers  that  one  of  the  judges  ought  not  to  sit  in  a  particular 
case,  he  shall  so  inform  him  and  thereupon  it  becomes  the  duty  of  the 
judge  to  abstain  from  sitting.  A  judge  who  believes  that  he  ought  not 
to  sit  in  a  particular  case  can  take  the  initiative  with  the  President  with 


221 

reference  thereto.  In  case  of  disagreement  on  this  point  between  the 
President  and  the  judge  it  is  competent  for  either  to  appeal  to  the  Court 
in  plenary  session  for  a  decision  of  the  question. 

17.  The  number  of  judges  may  be  increased  by  the  Assembly  from 
time  to  time  to  not  exceed  fifteen  judges  and  six  supplementary  judges 
in  the  aggregate. 

18.  Every  judge  or  supplementary  judge  shall,  at  the  first  sitting 
at  which  he  is  to  be  present,  solemnly  declare  that  he  will  exercise  his 
functions  in  accordance  with  international  law. 

19.  The  President  shall  reside  at  the  seat  of  the  Court. 

20.  The  judges  and  supplementary  judges  shall  enjoy  diplomatic 
privileges  and  immunities  in  the  exercise  of  their  functions  outside 
their  own  country. 

21.  The  judges  and  supplementary  judges  shall  draw  an  annual 
salary  to  be  fixed  by  the  Council  of  the  League  of  Nations. 

22.  After  the  termination  of  the  judicial  functions  the  judges  shall 
be  entitled  to  a  pension  on  a  scale  to  be  fixed  by  the  Council  of  the 
League  of  Nations. 

23.  The  expenses  of  the  Court  shall  be  borne  by  the  League  of 
Nations. 

24.  The  seat  of  the  Court  shall  be  at  The  Hague. 

25.  The  Court  shall  have  one  session  every  year,  which,  unless 
otherwise  provided  by  rule  of  Court,  shall  begin  on  the  fifteenth  of  June 
and  continue  until  the  business  before  the  Court  is  disposed  of.  The 
President  shall  have  the  power  to  convoke  an  extraordinary  session  of 
the  Court  when  he  deems  it  necessary. 

26.  There  shall  be  present  at  the  first  hearing  of  a  case  not  less 
than  nine  judges  and,  if  there  be  less  than  this  number  available,  their 
places  shall  be  filled  by  supplementary  judges  called  in  rotation  in  the 
order  of  age.  If,  for  any  reason,  any  of  the  judges  are  unable  to  con- 
tinue during  the  hearing,  the  remaining  judges,  provided  there  is  a 
quorum  of  seven,  can  continue  the  case. 

27.  If,  on  the  trial  of  a  case,  there  is  no  judge  upon  the  Court  be- 
longing to  one  of  the  litigating  States,  that  State  shall,  for  the  purposes 
of  the  trial,  appoint  a  judge  who  shall  take  part  in  the  disposition  of 
the  case  with  e((ual  rank  with  the  other  judges  on  the  bench. 

If  neither  of  the  parlies  in  litigation  before  the  Court  has  a  judge, 
each  shall  appoint  a  judge  to  take  part  in  the  proceedings  and  the  dis- 
position of  the  case. 

If  two  or  more  of  the  parties  are  in  the  same  interest,  they  shall 
have  but  one  judge,  to  be  agreed  upon  between  them. 


222 

28.  The  Court  is  open  to  ail  States  wlio  are  members  of  tlie  League 
of  Nations  and  to  States  not  members  of  the  League  who  comply  with 
the  conditions  laid  down  by  the  Council  under  Article  17  of  the  Cove- 
nant. The  Court  shall  take  cognizance  only  of  suits  between  States,  but 
the  State  may  put  forward  rights  which  it  claims  on  behalf  of  any  of  its 
citizens  or  for  the  nationals  of  another  State  on  whose  behalf  it  is  entitled 
by  treaty  to  appear. 

29.  The  Permanent  Court  of  International  Justice  is  competent  to 
deal  with  disputes  between  States  concerning  cases  of  a  legal  nature; 
that  is    to  sa3^  those  dealing  with : 

(a)  The  interpretation  of  a  treaty. 

(b)  Any  point  in  international  law. 

(c)  The  proof  of  any  fact,  which,  if  established,  would  con- 
stitute a  breach  of  an  international  contract. 

(d)  The  extent  or  nature  of  reparation  due  for  the  breach 
of  an  international  contract. 

(e)  The  interpretation  of  a  sentence  passed  by  the  Court. 

Cases  which,  though  they  cannot  be  drawn  up  and  decided  accord- 
ing to  strict  law,  are  the  subject  of  an  agreement,  between  the  parties, 
submitting  them  for  decision  by  judicial  means,  are  classified  with 
cases  of  a  legal  nature,  for  the  purpose  of  submission  to  jurisdiction. 

In  cases  of  a  dispute  on  the  decision  whether  a  given  case  does  or 
not  fall  within  the  classification  of  the  preceding  article,  the  Permanent 
Court  will  render  an  interlocutory  decision. 

30.  When  a  case  arises  between  two  States  under  the  provisions 
of  Article  1,  and  after  all  diplomatic  means  of  settling  such  dispute 
have  been  exhausted  and  it  is  not  agreed  to  submit  the  case  to  a  Court 
of  Arbitration  as  defined  in  Article  XIII  of  the  Pact,  the  party  alleging 
injury  may  submit  the  case  to  the  Permanent  Court. 

If  the  other  party  refuses  to  submit  the  case  to  the  Court,  the  Court 
decides  in  first  instance  if  there  exists  an  affirmative  or  negative  engage- 
ment to  submit  to  the  Permanent  Court  the  case  in  conformity  with  the 
provisions  of  Article  XIV  of  the  Pact. 

All  States  signatories  to  the  present  act  arc  considered  as  having 
agreed  to  submit  to  the  Permanent  Court  all  cases  enumerated  in 
Article  I  arising  between  two  signatory  States,  unless  it  is  already 
agreed  to  select  a  Court  of  Arbitration  according  to  Article  III. 

31.  The  rules  of  law  to  be  applied  by  the  Court  within  the  limits 
of  its  competence,  hereinbefore  described,  for  the  settlement  of  inter- 
national differences  are  as  follows,  in  the  order  in  which  they  are  to 
be  considered: 


223 

(1)  Conventional  international  law,  whether  general  or 
special,  being  rules  expressly  adopted  by  the  States  which  are 
parties  to  a  dispute; 

(2)  International  custom,  as  evidence  of  a  common  practice 
of  nations,  accepted  by  them  as  law; 

(3)  The  general  principles  of  law  recognized  by  civilized 
nations; 

(4)  The  authority  of  judicial  decisions  and  the  opinions  of 
the  best  qualified  publicists  of  different  nations  as  a  means  of 
application  and  development  of  law. 

32.  The  Court  may  give  an  advisory  opinion  upon  any  dispute  or 
question  referred  to  it  by  the  Council  or  the  Assembly  of  the  League  of 
Nations  and  may  take  jurisdiction  in  any  question  submitted  to  it,  pur- 
suant to  the  provisions  of  any  treaty  to  which  any  member  of  the 
League  o*f  Nations  is  a  party. 


INDEX 


INDEX 

[Figures  in  italics  refer  to  article  numbers  of  conventions,  treaties,  etc.] 

PAGE 

Academy  of  international  law  at  the  hague,  resolution  of  the  Advisory 

Committee  of  Jurists    140,  171 

Adatci.  Mineichiro  (Japan) 3,4,  8,  16,  17,  18,  22,  27,  36,  46,  48,  63,  88,  89,  100 

Advisory  committee  of  jurists 

Members    of     3, 4 

Formal  opening  of  sessions   5 

Procedure  of 9 

Discussion  and  adoption  of  principle  of  appointing  judges  of  proposed 

court  of  international  justice 12 

Declaration  of    15 

Project  of  permanent  court  of  international  justice 49,  149 

Resolutions 

I. — International  conference  for  advancement  of  international  law  133,  168 

II. — ^A  high  court  of  international  justice 139,  170 

III. — Academy  of  international  law  at  The  Hague 140,  171 

Closing   session    142 

Report  of  Dr.  Scott   2 

Akidzuki,  Satsuo    (Japan)    3 

Altamira,  Rafael  (Spain) 3,  4,  8,  18,  21,  25,  36,  46,  48,  51,  59,  64,  65,  89 

Anzilotti,  Dionisio   (Italy)    9 

Arbitral  justice.     See  Court  of  arbitral  justice. 

Austria,  project  for  an  international  court  of  justice 201 

Bevilaqua,  Clovis  (Brazil)    3,  4,  8,  18,  37 

Board  of  trustees  of  the  carnegie  endowment,  letter  of  Dr.  Scott  to.  .  .  .  1 

Bourgeois,  Leon  (France) 6,  7,  38,  143 

Bryan,  William  Jennings    117 

Carnegie,    Andrew    5,  141 

Carnegie  endowment,  board  of  trustees,  letter  of  Dr.  Scott  to 1 

Central  American  court  of  international  justice 195 


228  INDEX 

PAGE 

Clemenceau,  Georges   (France)    15n 

Committee  of  jurists.     See  Advisory  committee  of  jurists. 

Conferences  for  advancement  of  international  law,  resolution  of  the 

Advisory  Committee  of  Jurists .  .  133,  168 

Conferences,  international.     See  Peace  conferences. 

Conventions.     See  Treaties. 

Court,  international.  See  Court  of  arbitral  justice;  Permanent  court 
OF  international  justice;  Court  of  international  justice  of 
central  america;  high  court  of  international  justice 

Court  of  arbitral  justice 

Access  to,  1,  21    177,  181 

Draft  convention  relative  to  the  creation  of  a 177 

Constitution  of  the  court,  1-16 177-180 

Administrative  council  of  permanent  court  of  arbitration  exer- 
cises same  functions  with  respect  to  court  of  arbitral 

justice,   12 179 

Agreement  to  constitute,  1 177 

Annual  report  shall  be  made  to  powers  and  judges,  15 180 

Delegation,  organization  of  the,  6 178 

International   bureau   of   permanent   court   of   arbitration    acts 

as  registry  to  court,  13   179 

Judges 

Can  not  decide  case  in  which  they  have  previously  taken 

part,    7     '. ] 178 

Can  not  be  counsel  for  party  before  the  court,  7 178 

Character   and  qualifications   of,  2 177 

Compensation  for,  9    179 

Enjoy  diplomatic  privileges,  5 178 

May  also  be  judges  of  international  prize  court,  16 180 

Method  of  ranking,  4-    178 

Receive    no    compensation    from    own    or    other    govern- 
ment,   10    179 

Required  to  take  oath,  5 1 78 

Shall  serve  twelve  years,  3 177 

Meetings  of  court,  14   180 

Not  to  affect  status  of  permanent  court  of  arbitration,  1 177 

President  of  court,  how  elected,  8 178 

Sits  at  The  Hague,  11 179 

Sits  elsewhere  witli  consent  of  parties  11 179 

Vacancy,  manner  of  filling,  3 177 

Competency  and  procedure  of  the  court,  17-S3 180-183 

Contracting  powers  only  may  apply  to,  21 181 

Costs,  how   paid,  29    1 83 


INDEX  229 


PAGE 


(^JornT  OF  ARBITRAL  jusTicK,  Continued 

Court  follows  rules  of  convention  of  1809,  except  in  so  far  as 

this  convention  provides  otherwise,  22   181 

Court  may  deal  with  cases  submitted  in  virtue  of  special  or 

general  treaties,  17    180 

Decision  is  made  by  majority,  27 182 

Is  signed  by  president  and  registrar,  28 182 

Must  contain  names  of  judges  taking  part,  28 182 

Must  give  reasons,  28 182 

Delegation  can  decide  cases  by  summary  procedure,  18 180 

Each  party  nominates  a  judge  to  the,  20 181 

If  acting  as  commission  of  inquiry,  each  party  may  nomi- 
nate any  person  to  the,  20 181 

May  draw  up  compromis  if  parties  agree,  19 181 

Or  in  case  of  dispute  governed  by  general  treaty,  19.  181 
Or  in  case  of  dispute  originating  from  contract  debts, 

19 181 

May  hold  inquiry,  18 180 

Method  of  voting  in,  30 1 83 

Procedure,    30    183 

Discussions  of  court  are  under  control  of  presiding  officer,  26.  182 

General  expenses  of  the  court  are  borne  by  the  powers,  31 ...  .  183 
International  bureau  of  permanent  court  of  arbitration  serves 

as  channel  for  communications  to  judges,  2^ 182 

Languages  to  be  used,  court  determines,  23 182 

Modifications  to  present  convention,  court  may  propose,  33 .  .  .  183 

Notices  to  be  served,  25 182 

Proceedings  are  secret,  27   182 

Rules  of  procedure,  court  draws  up  its  own,  32 183 

Final  provisions,  34.-33   •.  .  .  .183-184 

Ratification,   34    183 

Denunciation,  35    184 

Court  of  interxatioxal  justice  of  central  America,  articles  6-S,  13.  .  .  19o 

Covenant  of  the  league  of  nations 

Preamble     2 

Articles  12-17,  21    1 72 

Denmark 

Five  power  plan  for  a  court  of  international  justice.  Articles  .J-9 215 

Joint  draft  convention  for  an  international  juridical   organization.  Ar- 
ticles 10-17 ". 203 

Project  for  an  international  court  of  justice,  Articles  1-7 200 

Descamps,  Baron  (Belgium) 3,  4,  .5,  7,  8.  1 1,  19,  20.  21.  24.  37.  39.  40,  42,  45, 

46,  47,  48,  58,  r.3,  r.7.  84.  89.  137.  139.  140.  144 

Drago,  Luis  Maria  (Argentine  Republic)   3,  4 


230  INDEX 

PAGE 

Fadda,  Carlo  (Italy)    3,  1 

Fernandes,  Raoul  (Brazil)    3,  4,  8,  18,  37,  78,  83 

Five    power    plan    (Denmark,    Norway,    Holland,    Sweden,    Switzerland) : 

project  for  an  international  court  of  justice.  Articles  ^-0 215 

France,  treaty  with  the  United  States  for  the  advancement  of  peace,  Sep- 
tember  15,   1914,  Article   '2 190 

Fromageot,   Henri    (France)    3, 4 

Germany,  project  of  a  permanent  international  court  of  justice,  extract.  ...        200 

Gram,  G.  W.  W.  (Norway)    3,  4 

Hagerup,  Francis  (Norway)  .  .  .4,  8,  21,  22,  24,  25,  35,  3G,  43,  44,  46,  48,  58,  65,  68 

Hague  academy  of  international  law,  resolution  of  the  Advisory  Com- 
mittee  of  Jurists    140,  171 

Hague  conferences,  continuation  of,  resolution  of  the  Advisory  Committee 

of  Jurists    " 133,  168 

Hague  peace  conference  of  1907 

Draft  convention  for  creation  of  court  of  arbitral  justice.     See  Court  of 

arbitral  justice. 
Methods  for  constitution  of  a  permanent  court  of  international  justice 

proposed    to    184 

Hammarskjold,  Ake   (Sweden)    9 

High  court  of  international  justice,  resolution  of  the  Advisory  Commit- 
tee of  Jurists    139,  170 

International  courts  of  justice.  See  Court  of  arbitral  justice;  Per- 
manent court  of  international  justice  ;  Court  of  interna- 
tional justice  of  central  America;  High  court  of  interna- 
tional justice. 

International  juridical  organization,  joint  draft  convention  of  Denmark, 

mark,  Norway,  and  Sweden,  Articles  lO-n 203 

International  law  academy  at  the  hague,  resolution  of  Advisorj'^  Com- 
mittee of  Jurists    140,  171 

International  law,  conferences  for  the  advancement  of,  resolution  of  Ad- 
visory Committee  of  Jurists   133,  168 

Italy,  project  for  a  court  of  international  justice,  extract 199 

Juridical  organization,  international,  joint  draft  convention  of  Den- 
mark, Norway,  and  Sweden,  Articles  10-11 203 


INDEX  231 

PAGE 

Karnebeek,  Joxkheer  van  (Netherlands)    5,  146-7 

Lapradelle,  Albert  de  (France) 4,  8,  24,  25,  37,  39,  40,  42,  40,  48,  58, 

59,  Gl,  G3,  G8,  78,  79,  95,  112,  142 

League  of  nations  covenant 

Preamble   2 

Articles  12-17,  21    1 72 

Swiss  project  and  constitution.  Articles  12-16 197 

LoDER,  B.  C.  J.  (Netherlands) 3,  4,  8,  25,  2G,  3G,  37,  38,  39,  46,  48 

Nelidow,   Alexander    (Russia)     140,  141 

Netherlands 

Five  power  plan  for  an  international  court  of  justice,  Articles  Jf-9 .  ...        215 
Project  for  an  international  court  of  justice.  Articles  1-5,  17 212 

Norway 

Five  power  plan  of  court  of  international  justice,  Articles  Jf.-9 21a 

Joint  draft  convention  for  an  international  juridical  organization.  Ar- 
ticles 10-17 203 

Report  of  committee  on  a  court  of  international  justice.  Articles  1-7 .  .  .  .        208 

Paris  peace  conference  of  1919 

Project  for  a  permanent  court  of  international  justice  antedating 195 

Recent  projects    for   a   permanent   court   of   international   justice,   sub- 
mitted to   198 

Recent   projects    for   a   permanent   court   of   international   justice,    not 

submitted  to    203 

Pauncefote,  Lord  (Great  Britain)    5 

Peace  conferences 
Hague,  1907 

Draft   convention   for   creation   of   court   of   arbitral   justice.       See 
Court  of  arbitral  justice. 
'Methods  for  constitution  of  a  permanent  court  of  international  jus- 
tice proposed  to  the  conference 184 

Paris,  1919 

Project  for  a  permanent  court  of  international  justice  antedating  the 

conference     195 

Recent    projects    for    a    permanent    court    of    international   justice, 

submitted    to   the   conference 198 

Recent    projects    for   a    permanent    court    of    international   justice, 

not  submitted  to  the  conference 203 

Conferences   for   advancement   of   international   law,   resolution    of   Ad- 

visorv  Committee  of  Jurists 140,  171 


232  INDEX 

PAGK 

Permanent  court  of  international  justice  (project  of  Advisory  Commit- 
tee of  Jurists) 

Access  io,  1,32 49,  95,  149,  159 

Competence  of  the  court,  31-36 92-113,  159-161 

Court  may  give  advisory  opinion  to  Council  and  Assembly  of  the 

League  of  Nations,  36 Ill,  161 

Decisions  of  court,  law  applicable  to,  35 106,  160 

Jurisdiction,   under   sjDecial   convention,   to   hear    any   kind   of   dis- 
pute, 3Jf 97,  160 

Jurisdiction,  without   special  convention,  to  hear   cases   of   a  legal 

nature,  3Jf   97,  160 

Expenses  of  court  borne  by  League  of  Nations,  30 91, 158 

Organization  of  the  court,  2-30 50-92,  149-158 

Composition,  2   50,  149 

Court  elects  own  president,  vice  president,  and  registrar,  21 78,  155 

Court  frames  its  own  rules  of  procedure,  27 85,  157 

Members  of  the  court 

Can   not    decide   case    in   which    they   have     previously     taken 

part,  17 ' 74,  154 

Character  and  qualifications,  2 50,  149 

Deputy  judges,  order  in  which  they  are  called  to  sit,  15 71,  153 

Dismissal  oi,  18 75,  154 

Election  by  Assembly  and  Council  of  League,  Jf 54,  156 

Enjoy  diplomatic  privileges  and  immunities,  19 76,  155 

Functions  which  are  incompatible  with  duties  oi,  16 73,  154 

Joint  conference  appointed  by  Assembly  and  Council  of  League 

of  Nations  may  propose  names  of,  12 66,  152 

May  be  reelected,  13 68,153 

May   not  act  as   agents,   counsel   or   advocate   in   international 

cases,  17    74,  1 54 

May  not  sit  in  certain  cases,  24- 81,  156 

Method  of  election,  5-13   56-70,  150-153 

Nationalitv  of,  5    56,  151 

Number  oi,  3 52,  150 

Pensions   of,  29    90,  158 

Required  to  make  solemn  declaration,  20 77,  155 

Salaries  and  grants,  29 90,  158 

Salary  of  registrar,  29    90,  158 

Term  of  office,  13 68,  153 

Traveling  expenses  of,  29    90,  158 

Nine  judges  constitute  a  quorum,  25 82,  156 

Parties  in  dispute  may  have  judge  sitting  on  court,  28 85,  157 

Registrar  may  be  the  secretary  general  of  the  permanent  court  of 

arbitration,   21    78,  155 

Special  chamber  for  summary  procedure,  26 83,  156 

Vacancies,  manner  of  filling,  14   ''^O,  153 


INDEX  238 


pERMANKNT  COURT  OF  INTERNATIONAL  JUSTICE    (project  of  Advisury  Commit- 
tee of  Jurists),  Continued 

Procedure  of  the  court,  37-02 113-132,  1G1-1G8 

1G8 
102 
1G3 
1G3 
1G4 
1G4 


All}'  state  may  intervene  as  third  party,  GO,  Gl 131,  1(17 

Consists  of  two  j^arts,  Jf.1    118 

Oral  procedings,  ,^o    110 

Written  proceedings,  Jf2   118 

Court  makes  orders  for  conduct  of  case,  Jf7 121 

may  call  upon  agents  for  documents,  etc.,  ^<^' 122 

may  exercise  jurisdiction  in  a  case  if  one  of  the  parties  fails 

to  ai^pear  before  court  or  to  defend  its  case,  52 124 

may  institute  an  inquiry,  Jf.9    122 

ma}^  question  witnesses,  agents,  etc.,  50 123 

may  refuse  evidence,  51    123 

may  suggest  provisional  measures  to  preserve  rights  of  par- 
ties in  dispute,  89   117 

Deliberations  of  court  take  jilace  in  private  and  remain  secret,  oJ.  127 
Each   party   bears   its   own  costs,  unless   otherwise  decided  by   the 

coutt,  G2   132 

Hearing  in  tlie  court,  ^5   120 

Judgment,  appeal  for  revision  of,  59    130 

,  proceedings  in  revision  of,  59 130 

is  final,  58    129 

may  contain  names  of  dissenting  judges,  56? 128 

signed  by  president  and  registrar,  57 120 

shall  contain  names  of  judges,  55 128 

shall  state  reasons  upon  which  it  is  based,  55 128 

Languages  to  be  used,  37    113 

Minutes  of  proceedings,  JfG 121 

Parties   represented  before  court  bv   agents,  counsel   or   advocates, 

^0     ■ 118 

President  declares  case  closed,  53 120 

directs    proceedings,    JfJf. 120 

Questions  decided  by  majority  of  judges  present  at  hearing,  5Jf.  .127 

In  ease  of  tie,  president  has  casting  vote,  5^ 127 

Recourse  to  court,  38 110 

Represents  main  forms  of  civilization  and  principal  legal  systems  of  the 

world.    9    02 

Seat  of  the  court  at  The  Hague,  22 80 

Sessions  of  the  court.  23   81 


1G.5 
1G4 
1G5 
1G5 

102 
100 

1G8 
104 
167 
1G7 
1G7 
100 
100 
100 
100 
101 
104 

102 
1  00 
103 
100 
100 
102 

151 
1.'5.'5 
lo.') 


Permanent  court  of  international  justice   (projects  of  various  govern- 
ments and  individuals) 

Austrian    project    201 

Danish  project,  Articles  1-7    200 

Denmark.  Norway,  and  Sweden,  draft  convention   for  an   international 

juridical  organization.  Articles  1-7 203 

Five  power  plan    (Deimiark.   Norway.   Holland.   Sweden,   and   Switzer- 
land).  Articles   ^-.9    215 


234  INDEX 

PAGE 

Permanent  court  of  international  justice   (projects  of  various  govern- 
ments and  individuals),  Continued 

German  project,  extract 200 

Methods    for   constitution   of   court    proposed   to    Hague    conference    of 

1907     •' 181' 

Italian  project,  extract 199 

Netherland  project.  Articles  1-5,  17    212 

Norwegian  committee,  report  prepared  by,  Articles  1-7 208 

Root-Phillimore    plan    218 

Swedish  project,  Articles  1-7    2t0 

Swiss  project,  Articles  12-16 197 

United  States  project,  extract 198 

Phillimore,  Lord  (Great  Britain) 3,  4,  8,  9,  21,  26,  27,  SB,  38,  43, 

44,  40,  47,  48,  51,  63,  79,  90,  100.  142 

Phillimore-Root  plan  for  a  permanent  court  of  international  justice 218 

Resolutions  of  advisory  committee  of  jurists 

French  and  English  texts    168,  170,171 

Report  of  Dr.   Scott    133,  139,140 

Ricci-BusATTi,  Arturo  (Italy)    4,  8,  27,  28,  43,  44,  45,  46,  48,  99n,  142 

Root,  Elihu 3,  4,  5,  8,  9,  13,  14,  15,  29,  31,  32,  33,  34,  35, 

36,  37,  39,  40,  41,  42,  43,  44,  46,  48,  58,  61, 

03,   64,   65,   07,   73,  75,   79,   83,   89,    100,   103, 

105,  112,  136,  137,  142,  143 

Root-Phillimore  plan  for  a  permanent  court  of  international  justice 218 

Scott,  James  Brown    1^5,  447i,  148 

Sweden 

Five  power  plan  for  a  permanent  court  of  international  justice.  Ar- 
ticles 1^-9 •  •  •  • 215 

Joint  draft  convention  for  an  international  juridical  organization.  Ar- 
ticles   10-17    203 

Project  for  a  court  of  international  justice.  Articles  1-7 210 

Switzerland 

Five  power  plan  for  a  permanent  court  of  international  justice.  Ar- 
ticles Jf-9   215 

Project  for  a  league  of  nations  and  constitution.  Articles  12-16  (an  inter- 
national court  of  justice)    197 

Treaties 

Convention  of  December  30,  1907,  relating  to  creation  of  the  Court  of 

international  justice  of  Central  America,  6-8,  13 195 

Covenant  of  the  I>eague  of  Nations,  preamble,  12-17,  21 2,  172 

France  and  tlie  United  States,  September  15,  1914,  Article  2 196 


PAGE 

Unitkd  States 

Project  for  a  permanent  court  of  international  justice,  extract 108 

Treaty  with  France  for  the  advancement  of  peace,  September  15,  1914, 

Article  2    1 9(; 

Vesnitch,  Milenko  Rt   (Serbia)    '.  3^  4 

Weiss,  Andre    (France)    4 


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